Comparative Civil Procedure

Abstract Default arbitration, due to the non-appearance of the respondent and the absence of their defenses, constitutes a context susceptible to cognitive biases affecting arbitrators. This vulnerability exists across all types of arbitration, including commercial and domestic and international investment arbitration, potentially compromising the arbitrator’s impartiality. The present study aims to identify the circumstances in which cognitive biases emerge in default arbitration and to propose effective legal mechanisms to safeguard arbitrator impartiality. Employing a qualitative, analytical-comparative methodology, the research integrates principles of cognitive psychology—specifically the “fast and slow thinking” theory—and arbitration law, based on library-based analysis. Ten distinct cognitive biases were identified, each capable of influencing both procedural and substantive rulings in the absence of the respondent. The redesign of procedural requirements, engagement of independent experts, and establishment of multi-member arbitral tribunals, as opposed to sole arbitrators, can mitigate these biases and reinforce arbitrator impartiality. Properly structured procedural safeguards not only control cognitive biases but also enhance the legitimacy and enforceability of arbitral awards.



Keywords: default arbitration, arbitral award, cognitive bias, confirmation bias, effective notification

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 Abstract

Administrative law lacks a general code of administrative procedure, and quasi-judicial authorities do not have detailed or adequate procedural procedures except in limited cases. Therefore, the issue discussed in this article is whether it is possible to deduce general rules of administrative procedure from the existing procedural regulations in Iran and make them governing proceedings in quasi-judicial authorities. After examining some general rules of administrative procedure in some countries and also examining the general rules of criminal and civil procedural laws, the author has concluded that there are principles and rules in the Iranian procedural law system that are mandatory for quasi-judicial authorities to observe. These rules can be deduced from the general rules of civil procedural law and criminal procedural law, or can be considered as a legal and rational principle and, in general, as general rules of administrative procedure governing proceedings in quasi-judicial authorities.

Keywords: procedural law, administrative, principles, general rules, quasi-judicial authorities

Abstract Humans use heuristics unconsciously, i.e., cognitive processes or experience-based strategies that are used to solve a problem or reach a decision, leading to cognitive biases. Judges are human and prone to the same cognitive biases, especially since the nature of their job requires judgment under uncertainty. Heuristics and cognitive biases are unconscious and occur automatically.

This article uses data from behavioral science studies and desk research to address the question of which heuristics are used in the judicial process, what biases they lead to, and how they can be moderated. Confirmation bias, hindsight bias, availability bias, representation bias, and moral bias are among the most prominent ones. There are ways to minimize harmful biases in judgment. Training and publication of judicial opinions, utilizing checklists, reassessment (by judges themselves or a higher court), and writing judicial opinions are existing solutions, some of which are reflected in procedural law and should be taken seriously. It should also bear in mind that the fallibility of the mind requires a review of the irreversible legal consequences in the judicial justice system.

Abstract The arbitration agreement, as the cornerstone of dispute resolution, is commonly viewed merely as an instrument for referring a dispute to arbitration. However, this minimalist approach overlooks its crucial potential to combat the destructive phenomenon of “guerrilla tactics”—a set of vexatious and dilatory actions aimed at protracting and undermining the proceedings, thereby eroding the fundamental advantages of arbitration: speed and efficiency. Therefore, this article aims to present a preventive contractual framework for disarming the “arbitration guerrilla” and addresses the key question: how can the arbitration agreement, through intelligent engineering, be transformed into an effective shield against this procedural scourge? Using a descriptive-analytical method, this study demonstrates that the key to an effective response lies not in ex post facto remedies, but in the activation of the principle of party autonomy. The findings indicate that by designing a structured and disciplined process (such as establishing codes of conduct and setting firm deadlines), stipulating effective financial sanctions (like cost allocation based on misconduct and the use of procedural penalty clauses), and incorporating powerful enforcement tools (suchas asymmetric clausesand requests for adverse inferences), parties can transform thearbitration agreement into a robust fortress against deliberate disruptions, thereby ensuring the integrity and efficiency of arbitration.

Abstract The aim of this research is to conduct a comparative study to achieve a more precise understanding of law in two major periods of Iranian legal history: ancient Iran and post-Islamic Iran. Law is examined through its meaning, function, and purpose, with particular focus on the political element in both eras. The study highlights the differing relationships between Islamic law and Zoroastrian law with politics, then explores other characteristics of law that may stem from or connect to its political dimension or cosmological foundation. The notion of original sin, seen as the first transgression against law, is analyzed to understand law in extreme situations of violation. Another key issue is whether the identity of law depends on its form or its content, which marks a significant distinction between the two traditions. Criminal law and the role of punishment provide further insight into contrasting Iranian perceptions of law. Finally, the manner in which law developed in the history of Zoroastrian and Islamic jurisprudence reveals another aspect of divergence between the aforementioned eras.

Abstract The prolonged and continuous imposition of sanctions against Iran over many years has caused extensive harm to numerous natural and legal persons. In many instances, these sanctions, either in their adoption or in their effects, have been accompanied by violations of international law and are therefore devoid of legitimacy and inconsistent with international legal standards. Where the incompatibility of sanctions with international obligations is established and their attribution to a sanctioning state or international organization is demonstrated, the international responsibility of the sanctioning entities arises.

In order to facilitate access to justice for victims of sanctions and to enable the possibility of reparation, it is essential to identify the competent judicial at both national and international levels and to clarify the applicable procedural frameworks. Accordingly, this research identifies the relevant judicial bodies and examines the jurisdictional bases, procedural mechanisms, parties to the proceedings, and other formal and substantive requirements governing sanctions-related claims. The ultimate objective is to facilitate effective remedies for victims of sanctions and to strengthen compliance with fundamental principles of international law.

Abstract This study engages in a comparative analysis of Iranian and French law to scrutinize the foundations of connected claims (connexité) and incidental claims (demandes incidentes), as well as the influence of these foundations on the definition and scope of the concept of "connection." The central inquiry of this article is whether the two renowned rationales—prevention of the repetition and renewal of litigation (lis pendens), and the prevention of contradictory judgments—can fully justify the existential philosophy of connected claims. Furthermore, it investigates the extent to which these rationales are realized within the current procedural structures of Iran and France.

Additionally, the article questions whether complementary rationales, such as the "proper administration of justice" (bonnie administration de la justice) and empowering the court to achieve a comprehensive dispute resolution, could lead to a more precise explication of this institution's objectives. It also examines how the adoption of each rationale impacts the definition of "connection," particularly regarding the distinction between "unity of origin" and "complete connection."

Abstract With the development and expansion of football as one of the most popular sports in the world,, football disputes have taken on a newer and more complex form, to the extent that disputes related to this sport have found many forms and examples, and the authorities for resolving these disputes and the performance of these authorities have also changed compared to the past. It has undergone many changes. Football and the disputes related to this area, like other specialized matters in the world today, need to be examined by elites and people familiar with this field of sports, and it can be said that assuming the validity of the regulations and laws in the national federations, confederations and the world federation(fifa), the plan of this Lawsuits in specialized authorities will lead to a better result than going through a fast, specialized and much cheaper trial process for the parties to the case.

Abstract Article 109 of the Civil Procedure Code allows the defendant to request security from the defendant to compensate for the legal costs that the plaintiff may have to pay to the defendant after a possible conviction. Legal writers have called this type of security the security for a false claim and have studied it in the section on objections. This is while neither the law nor the doctrine has defined a false claim and has not introduced a criterion or measure for determining whether a claim is false, in addition, this security has nothing to do with procedural objections and is a type of security. This is while most civil procedure writers have considered this security to be one of the objections and have studied it in the section on objections. In this article, the false claim under discussion and the philosophy of establishing this security, which is to prevent the filing of unfounded claims, have been stated. The procedure for requesting security, the court's duty to determine the term and amount of security, and the methods of objecting to the amount of security and the term for its payment, and the guarantee of its non-payment, have also been discussed.

Abstract The Mādayān ī Hazār Dādestān, the most substantial exclusively legal text from pre Islamic Iran, was composed in the late Sasanian period in Pahlavi. Unlike myth infused narratives, it comprises authentic judicial dossiers, legal opinions, and litigations, offering a precise depiction of the judicial apparatus, the magistrate's function, and the interplay between custom, religion, and positive law. The work is both an unparalleled source for Sasanian jurisprudence and a rich repository of information on the social, economic, and familial institutions of the era. Scholarly engagement with this work extends back over a century, with eminent figures such as Modi, Bartholomae, Bulsara, Perikhanian, and Maria Macuch contributing decisively to its reading, translation, and interpretation. Within this tradition, Macuch occupies a distinctive position: through an interdisciplinary and comparative methodology, she interprets the text not as a disparate assemblage of rulings but as a coherent legal system. By integrating philology, legal history, and institutional analysis, she has advanced a fresh reconstruction of Sasanian legal thought. Her oeuvre now constitutes a foundational reference in Sasanian legal studies and Iranology, and her comprehensive approach has systematically synthesised and reframed earlier contributions within an innovative analytical framework.

Abstract Today, the need for specialized education and research in the field of civil, criminal, and administrative procedures, along with amicable methods of resolving disputes, is becoming more and more serious. Many prominent universities in other countries have established the field of procedural law or law of procedures or a combination of justice and procedural law. In Iran, the issue of establishing a procedural law field was raised for the first time in 2019 at the University of Tehran. Although this goal has not been achieved to date, hopes are alive and the groundwork for establishing this field is becoming more prepared every day. The scientific need, along with the great interest of students and researchers in procedural issues on the one hand, and on the other hand, the growth of lawsuits and judicial authorities and the differences and conflicts of judicial opinions, have made it impossible to respond to all the scientific and practical needs of this knowledge with a small and limited study of procedural and evidence courses at the undergraduate level of law and marginal studies of procedural and comparative procedural courses at the master's and PhD levels.

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.....