Comparative Civil Procedure

Abstract This article analyzes the judgment of the International Court of Justice (ICJ) in the Certain Iranian Assets case (Islamic Republic of Iran v. United States of America), a treaty-based dispute under the 1955 Treaty of Amity arising from U.S. legislative, executive, and judicial measures enforcing terrorism-related judgments against Iranian assets. The study examines the interaction between procedural and substantive issues in treaty-based adjudication and their impact on the Court’s findings and reparations. Using a descriptive–analytical approach based on judicial materials and doctrinal sources, it shows that the preliminary objections phase confined the dispute to treaty claims and excluded those based on customary sovereign immunity. In its 2023 judgment, the Court upheld the objection of lack of jurisdiction ratione materiae concerning the Central Bank, while finding treaty breaches regarding other Iranian entities and ordering compensation. It also treated Article XX as a substantive defence and rejected its invocation. The judgment highlights the decisive role of procedural architecture in shaping the dispute’s substantive scope.

Abstract During judicial proceedings, a judge may encounter a confession previously made before another judge; in such circumstances, the judge confronts not merely a confession, but a statement that has already undergone formal evaluation. This article, employing a descriptive‑analytical method, examines the judge’s duty when facing a confession previously assessed by another judicial authority. The issue becomes significant when the confession is later denied or repudiated, or when the renewed presence of the confessor becomes difficult or impossible. Some jurists regard the prior confession as conclusive, decisive evidence revealing the truth, whereas others do not consider the judge bound by it. Legal scholars, relying on Articles 153, 199, 200, and 290 of the Civil Procedure Code, maintain that determining the credibility and probative value of the prior confession lies within the competence of the presiding judge and depends on the formation of judicial certainty. Conversely, some scholars classify prior court minutes as an official document and deem adherence to the confession obligatory. Jurisprudential and legal foundations emphasize the interpretive role and judicial discernment of the judge in uncovering the truth and attaining inner conviction.

Abstract Access to justice should always be possible. However, in a state of emergency during war, the way to access justice is challenging because, on the one hand, the lives of the actors in the proceedings are at stake, and on the other hand, access to justice cannot be interrupted. In some cases, the use of electronic proceedings can meet both goals and be a suitable solution for continuing the proceedings in this state of emergency. This article examines the feasibility of electronic civil proceedings in times of war using a descriptive-analytical method and library resources. The research findings show that while in French law, due to the optional nature of electronic proceedings, in an emergency situation such as war, suspending the proceedings until some time after the end of the emergency period is the executive solution in that country, in Iranian law, due to the mandatory nature of the electronic civil proceedings, the proceedings can be continued in some cases and with a combination of circumstances, and help realize the principle of continuity of justice in exceptional circumstances.

Abstract The increasing volume of litigation and the limited resources of the judiciary have raised a central question for contemporary procedural systems: how to balance the ideal of truth-finding in each case with the need for procedural efficiency. The principle of procedural proportionality has emerged as a strategic response to this challenge, requiring judicial resources -temporal, financial, and human- to be allocated in accordance with the nature, value, complexity, and circumstances of each dispute. Using a descriptive-analytical method and library-based sources, this study comparatively examines the status of proportionality in the procedural systems of the United States, England, Canada, France, and Iran. It also analyzes its functions in five key areas: procedural economy, procedural time, procedural formalities and judicial organization, provisional measures and procedural sanctions, and the law of evidence. The findings show that, while proportionality has been expressly recognized as a guiding principle in some common-law systems, its presence in civil-law traditions is mainly implicit. In Iranian law, although not expressly established as an independent procedural principle, its logic can be traced in jurisprudential, legislative, interpretive, and judicial contexts. The study concludes that Iranian law is at an intermediate stage, requiring legislative clarification and doctrinal development to consolidate procedural proportionality.

Abstract The rules governing on the provision of legal services (attorneyship/ contractual representation and consultancy) to the executive agencies has at least a record and history of six decades in Iran. indeed, the original root of current legal rules refers to the regulations of (1966) and (1978), enacted by the Board of Ministers. A detailed examination of the said regulations reveals that the government sought to establish certain rules with regard to the issue from the far moments; so that the rules would promote the efficiency in executive agencies and could be compatible with the necessities governing on the public law sphere and activities of governmental agencies. At the present, the manner of using legal services in executive agencies, mostly follows regulation of (2018) of the Board of Ministers. However, whenever we refer to the regulation of (2018) of the Board of Ministers and its other related instructions and specially a comparison is made between the current rules and its predecessors, it will be realized that the present legal order suffers from serious deficiencies and problems; so, it couldn’t be considered as a better achievement. Some of serious deficiencies and problems are: ..

Abstract Cassation does not terminate civil litigation; it returns the dispute to a court that must respect the effect of the supreme court’s decision while preserving responsibility for factual and legal reasoning. This article examines the foundations and legal nature of proceedings after cassation and defines the limits of independence and binding authority governing the court of referral in Iranian and French law. Using an analytical comparative method, it studies legislation, decisions, and doctrine in both systems. The findings show that proceedings after cassation are not a new action but a continuation of the original litigation within the scope reopened by cassation. In Iran, the possibility of an insistent judgment demonstrates that the court of referral retains relative interpretive independence after the first cassation, although that freedom is limited by the duty to remedy identified defects, respect the scope of cassation, and comply with the binding decision of the General Assembly. In France, the court of referral likewise exercises jurisdiction within the scope of cassation, while referral by the Plenary Assembly creates binding force regarding resolved points of law. The comparison therefore supports a model of initial judicial independence followed by final unifying authority, ensuring procedural coherence and lasting legal certainty.

Abstract The effectiveness of economic sanctions depends not only on the substantive prohibitions and penalties they impose but also on the procedural framework through which they are administered and enforced. Using the United States (US) as a case study, this article argues that the procedures governing sanctions designations administered by the Office of Foreign Assets Control (OFAC) constitute an independent mechanism for reinforcing sanctions pressure because OFAC designations are governed by a procedural framework in which the safeguards ordinarily afforded in civil and criminal proceedings – such as prior notice, disclosure of evidence, meaningful opportunities to be heard, effective avenues of appeal, and broader due process protections – are substantially curtailed in the name of national security and foreign policy. This procedural framework is further reinforced by the highly deferential standard of judicial review under the Administrative Procedure Act, under which US courts generally defer to OFAC’s factual findings and discretionary judgments rather than reassessing the merits of OFAC designations. As such, US persons and those subject to US jurisdiction are strongly incentivized to comply with US sanctions because an OFAC designation carries immediate and severe legal and economic consequences, with only limited opportunities to challenge or overturn the designation.

Abstract En 1806, deux ans après le Code civil des Français, était promulgué le Code de procédure civile, entré en vigueur le 1^erjanvier 1807. En 1975, était promulgué le nouveau Code de procédure civile, entré en vigueur le 1^er janvier 1976 sur la majeure partie du territoire national, puis le 1^er janvier 1977 sur l’ensemble du territoire français. Cependant, ce nouveau Code était alors incomplet.....

Abstract The concept of prescription, or limitation of time for initiating legal proceedings, was first addressed The Statute of Limitations for Movable Properties, approved on July 2, 1929 It was later articulated in a more general language in Iran’s 1939 Code of Civil Procedure (CCP). Article 731 defined prescription as a period after which courts would no longer hear claims, while Article 737 established a ten-year limitation for property-related and debt claims, unless otherwise provided by specific laws. This legal framework remained valid until 1983, when the Guardian Council—responsible for ensuring the compatibility of legislation with Islamic jurisprudence—declared the provisions on prescription contrary to Islamic law and therefore null and void. Consequently, Iranian courts ceased to recognize prescription as a defense, and the new CCP enacted in 2000 omitted any reference to it.
Despite the general invalidation of prescription under civil law, certain specific provisions in other legal codes—such as the Commercial Code, the Insurance Code, and the Islamic Criminal Code—have remained operative. Furthermore, in 1992 and 2008, the Guardian Council clarified that its 1983 decision did not apply to claims brought by foreign nationals against Iranian citizens if the claimant’s national legal system recognized prescription. In such cases.

Abstract The stage of execution of judgments is the most sensitive stage of the trial and realization of rights. Therefore, delay, suspension or withdrawal is not permissible. The mission of the judiciary in the chapter of hostility and realization of rights is completed only when the judgment is properly executed and the validity of the executive measures and regulatory documents is guaranteed. Therefore, in addition to the deadlines set for the convicted person who refuses to execute the judgment and interested persons in the capacity of objecting to the manner of execution of the judgment in various articles of the Civil Execution Law, another opportunity, unlimited in scope, should not be given to annul the execution and withdrawal in all executive measures of the judiciary. Obviously, the unanimous decision No. 845 dated 8/12/1402 of the General Board of the Supreme Court has not only nullified all deadlines related to objections to the quality of execution of civil judgments, but has also brought severe insecurity to the buyers of property subject to judicial auctions.

Abstract In order to achieve a fair trial, the final judgments of the judicial authorities have been considered valid, according to which no organization can refuse to implement them except in legal cases, furthermore, these judgments prevent any re-examination of the same dispute. This will bring stability to the validity of judgments. In contrast to the validity of a judgment, sometimes its accuracy is also discussed, and sometimes its legitimacy. This credibility can also be examined from various aspects and the elements of its realization can be analyzed. Therefore, the present study aims to identify the concept of " judgment validity" using a descriptive-analytical method and a comparative perspective, seeking to answer the fundamental question of what are valid judgment and correct judgment? What are the types of judgment validity and what elements are required to establish this validity? On this basis, this article, while explaining the concept of a valid, legitimate, and correct judgment, examines the types of validity from a formal and material perspective and finally, it examines the constituent elements of this trust from the perspective of the law and the actions of the parties.

Abstract How can the intangible suffering of human beings be measured on the material scale of law? This problem of immeasurability constitutes one of the most profound ambiguities in the law of civil liability and has cast doubt upon the very acceptance of the principle of compensation for non-pecuniary damage. Employing a descriptive-analytical method and a comparative approach, the present study examines the manner in which the legal systems of Iran and Germany confront this ambiguity, with particular emphasis on judicial approaches and court decisions concerning methods of redressing such harm. The findings demonstrate that Iranian law, by drawing upon the dynamic capacities of Islamic jurisprudence and legislative provisions, is conducive to a development-oriented approach; nevertheless, its judicial practice remains uncertain and inconsistent in transitioning from traditional conservatism toward the recognition of effective forms of compensation. In contrast, the German legal system, relying on Article 253 of the Civil Code, has adopted a text-oriented and restrictive approach to contain such uncertainty, establishing non-compensation as the general rule except in limited statutory exceptions. The comparative analysis reveals that although both legal systems ultimately seek to safeguard human dignity, their responses to this ambiguity diverge.

Abstract Guaranteeing linguistic rights in civil proceedings secures the supremacy of fair-trial principles throughout the proceedings . The language of proceedings is principally, that of the state in which the court is seated and any change to the language in domestic proceedings is prohibited because of its link to public order. Some countries, however, allow changing the procedural language in international commercial disputes; in such systems, the first step is the enactment of enabling legislation, followed by the establishment of bilingual chambers and limiting party agreements to predetermined languages. Translation is the solution to the problem of unfamiliarity with the language of proceedings. Oral interpretation is instrumental: the objective is achieved insofar as the party’s understanding and right of defence are effectively secured. By contrast, written translation is substantive: a document lacking translation is excluded from the evidentiary record. Translation also constitutes a form of expert activity and translators are procedurally subject to the provisions governing expert evidence under the Code of Civil Procedure. In civil matters, translation costs are borne by the parties, and translation quality depends on training translators in legal-interpretation skills. The potential for inconsistency or error provides sufficient grounds for allowing the translator’s opinion to be challenged.

Abstract The approach to appealing civil judgments holds an exceptional place among methods of challenging verdicts, and the supreme nature of its reviewing authority, namely the Supreme Court, confirms this claim. This method is anticipated in the fifth section of the Civil Procedure Law and has been the subject of numerous unified precedent rulings. Appeal has long been a focus of attention. Nevertheless, the policymaking and philosophy of emergence behind it have rarely been examined, raising the following question: “What principles and objectives led to the introduction of civil judgment appeal to our national legal system?”

The present study takes an analytical-descriptive approach, initially investigates the background of appeal in Iranian law, analyzes its fundamental philosophy and constructive forces, and evaluates legal policymaking surrounding legal and judicial policies.

Ultimately, these evaluations suggest that appeal is not merely a method of challenging a verdict. It is rather a potent tool in the hands of legal and judicial policymakers for judicial oversight, establishing and maintaining justice, increasing public satisfaction, and establishing social order. This process spans from supervision to judicial governance and is continuously pursuing perfection and greater efficiency.