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The formation of the border and the establishment of a border line between the two countries have political, economic and cultural-social consequences and impacts, especially at local and border settlements level. In this research, the consequences of the border establishment, border policies, and the plan to strengthen border guard (Forces) at several points of settlements such as Yazdan, Kaboodeh, and Nazarkhan have been discussed. This descriptive-analytical research, based on library and field pieces of information/findings seek to investigate the formation process of eastern borders within South Khorasan province and also the developments that during about six decades have taken place in these areas. The results of researchers showed that the determination and establishment of this border caused that some border villages such as Kaboodeh and Yazdan placed on this side of the border, and Nazarkhan was placed on the Afghan side. The consequences of these border policies have led to evacuation and destruction of border villages such as Kaboodeh and Yazdan, along the Nomands resettlement plan and security, and also their inhabitants were resettled in the Barenjgan city; in the other hand, Nazarkhan farm across the border has now changed into a linear village with a population of over 5 thousand people. The evacuation of these border villages along with the border privacy delimitation project, and also the forced migration of its residents to a new location has resulted in tensions between old residents and new immigrants in addition to causing discontent between borderers.
 

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Ali Moslehi Assistant Professor, Tehran University  During the second half of this century, international commercial arbitration has been increasingly successful among international traders as an alternative to national courts for the settlement of disputes. Parties to international contracts often include an arbitration clause in an attempt to protect their rights and to eliminate uncertainties in the event of a dispute. The arbitration clause inserted in the contract between parties is the normal means by which the jurisdiction of a specific international teibunal is created. Since the arbitration is a matter of contract and not of law, the jurisdiction of an arbitrator is contractually guaranteed by the parties. Therefore the arbitration clause is very important. Today, in a great number of countries, there is a marked tendency to view the arbitration clause as independent from the main contract.

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The term tafwiz or delegation is one of the terms, which have been rarely used in Islamic jurisprudential (Fiqh) and legal texts. In Constitutional Law and some of the common laws, this term has been considered by legislators. Few debates have been made on whether in Islamic jurisprudence (Fiqh) and law, delegation has a different meaning from its literal meaning and also on the different kinds of delegation and the nature, terms and effects of each of them. Although in some Islamic jurisprudential (Feqh) works, tawkil (authorization) has been used beside tafwiz (delegation) or even they have been taken as synonymous, further investigation shows that tawkil not only differs in meaning from tafwiz, but also it is not its only form. Tafwiz has other forms and kinds. In this article, besides explaining the technical meaning of tafwiz, the researchers attempted to introduce different kinds of tafwiz and their terms and effects. Finally, they have concluded that if there is no evidence to the opposite, tafwiz leads to the irrevocable transference of the right or authority of one person to another.

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 In this paper, in order to explain the scope of the parties' will in one of the most fundamental issues related to arbitration, the capacity of natural and legal persons for referring to arbitration has been studied. The study of legal verdicts and thoughts (judgments and opinions), national and international rules, and regulations governing international commercial arbitrations, simple laws, conventions and rules of international arbitration organizations show that the dominance (governance) of the freedom of will principle is always present in these subjects. However, in some legal systems, there are some limitations for legal persons of public law such as predicted in the Article 139 of Iranian Constitution. These constraints that are exceptional only in the realm of internal rights, are respected, and based on the international commercial arbitration procedures in the international commercial, there are ignored because they say these limitations are contrary with the international and transnational public orders.  

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The conclusion of investment treaties between states, given the nature of national law and international law, is a new string of discussions between arbitrators and lawyers, which has created some of the issues that do not comply with the rules of the classical national law and international law. Conclusion of two separate but simultaneous agreements, the treaty between the state-state, and between the state-investor on thesubject of separation and recognition of the contractual claims, and the treaty claims (considering the effects of determination of the applicable law and the competence of tribunals) have created considerable importance for the host states, exporting capital states, investment companies and arbitrators. In fact, separation of claims arising out the contract or the treaty not only, in case, makes the domestic courts or international tribunals to be qualified, but also affects on the law governing the dispute based on domestic law or international law principles. Therefore, several criteria have been considered for separation of disputes. Currently the most famous is still the classic standard of Jure Imperii and Jure Gestionis. It is also true in the subject of competent jurisdiction regarding the criteria for which shall the tribunal refer to the stage to accept or decline jurisdiction, whether the plausibility of claimant’s claim is sufficient or shall be considered the Prima Facie Criteria.    

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The purpose of res judicata in arbitration awards is that if the presented dispute has been already considered between the same parties or their representatives and a final judgment has been issued in that respect, the said judgment is precluded the re-litigation of that dispute. Considering that, in the Iranian law, there is no stipulation on the res judicata effect in arbitration proceedings, the findings of this article demonstrate that there is no difference in the necessity of applying this rule between the court judgment and arbitration award in this respect. Non-admission and rehearing of the dispute object in arbitration tribunal is the result of the parties̕ first agreement and concluded contract to refer to arbitration. In the United States law the res judicata effect of arbitration award in judicial decisions has been accepted on the basis of issue preclusion and claim preclusion.

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Arbitration is an agreement. The arbitration agreement determines who can be as plaintiff or defendant. Development of an arbitration clause to the third parties  is in conflict with  its nature. Foundations widen the scope of the arbitration clause with regard to international arbitration practice, and  the literature can be divided into two types. The first category includes items that, by ignoring the legal entity's parent company, shareholders or its subsidiary companies, can be arbitral tribunal parties, or by ignoring independent legal entity owned and controlled by parent company. In the next category, by finding signs of the issues raised by the consent of a third party, we can be expand the scope of an arbitration clause based on presumed consent.Agents, Estoppels and group of companies’ theory as a basis for extension based on presumed consent have been raised.

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In arbitration in equity, arbitrator seeks to resolve disputes in an equitable manner, which is not achievable through the application of legal strict rules. Amiable compositeur, ex aequo et bono and equity are common terms that in relation to amiable and equitable arbitration have frequently been utilized by the arbitration tribunal and the conflict parties in arbitration clauses and awards. Nonetheless, there is no consensus amongjurists as to this issue whether each of these expressions and concepts imply in different methods of decision making according to equity. In fact, it is not exactly specified what is difference between awards based on equity and those made based on ex aequo et bono ,and what is difference between arbitration in equity and assessing the dispute and act in the proceedings as an amiable compositeur?

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The inherent flexibility exists in the administration of proof in arbitration has led parties and arbitrators to reaching an agreement on the best possible solution to this process, which has resulted in approaching various legal systems together in this regard. Concerning this subject, the parties of arbitration usually endeavor to apply the best practices in the field of rendering proof, and the arbitrators are tending to evaluate the evidence provided in a coherent manner, regardless of the nationality and origin of the parties. This function, although typically performed and written, has never been a requirement as a result of conflict with the description of flexibility. However, the enforcement of guidelines in a manner consistent with the institution of supplementary rules in the legal system of law seems to be the appropriate solution that will ultimately make arbitration more predictable and more favorable. This paper has considered the international efforts made to standardize administration of proof, which have not yet been mandatory. Thereafter, it has been explained that these guidelines, if agreed by the parties, kept silent, or being brief, and not explicitly, implicitly, or customarily objected to the guidelines in the contract, govern the administration of proof. This function seems to create a kind of coherence in the administration of proof, and is not in conflict with the description of flexibility.

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Nowadays, the arbitrator can issue various protective orders in the arbitral process in international commercial arbitration. Some of these orders are so important that if the arbitrator makes decision incorrectly about the order, the award on the merits will be ineffective for winning party. The order of security for costs in arbitration is one of the above-mentioned orders. The respondent in the claim or the respondent in counter-claim requests the arbitrator to grant an order against the plaintiff for paying the sum of money. If the arbitrator’s final decision on the merits is not favor of the plaintiff, the costs of respondent for defending the frivolous claim will compensate from money. There are both advantages and disadvantages for ordering security for costs, but the advantages of this order are so much that the possibility of granting this order whether expressly or implicitly is accepted in most arbitration laws. With considering non-mentioning of security for costs in Iran’s International Commercial Arbitrations Law, the essay first is trying to study the concept and nature of security for costs order and second survey the possibility of ordering of it under Iran’s International Commercial Arbitrations Law.
 

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The broad concept of arbitrability in American law involves the inclusion of an arbitration clause on the subject of the dispute as well as referability the matter to the arbitral tribunal. The legislator forbids some claims in accordance with the political, social, and economic interests of the community from referral to arbitration. " competence-competence " principle allows the arbitration authority to comment on the issue of the discretion of the arbitrator`s jurisdiction arising from the validity and scope of the arbitration agreement. The Federal Arbitration Act does not explicitly exclude the competence-competence principle , but the court practice in america has accepted the principle of independence of the arbitration clause as a condition of arbitration and also exemplifies the authority of the arbitrators to determine their jurisdiction. By virtue of revised uniform arbitration act, the resolution of the dispute about the existence of the arbitration agreement and the inclusion of the subject in the arbitration agreement is principally within the jurisdiction of the court. International Commercial Arbitration act of Iran, while accepting the principle of independence of the arbitration clause, provide that the arbitrator can decide on his competence, as well as on the existence or validity of the arbitration agreement.
In domestic arbitration, although the opponents of the principle relyon Article 461 of the Code of Civil Procedure of Iran, but the implied intention of the parties as the basis for accepting the qualifications of the arbitrators in determining their jurisdiction can be invoked.
 

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In international construction contracts, in which huge financial, technical and human resources are needed, it is vital to solve all disputes at the site of project immediately. Dispute Adjudication Board (DAB) of the International Federation of Consulting Engineers or FIDIC which has been in use for a long time, particularly in the US, has remarkable success in avoiding prolonged arbitration or litigation. Board members are nominated by consensus at the time when the parties to the contract are focused on the agreement. They are independent with particular technical expertise appropriate to the contract. DAB is completely different from FIDIC’S old model construction contracts. DAB is close to arbitration and the enforcement of their decisions is almost similar. This is why legal evaluation of DAB’s decisions seems to be very important. There is no international convention for the enforcement of DAB decisions yet. However, finding ways to enforce them can accelerate the development of DAB in international contracts. Here the 1958 New York Convention as the most applicable and famous in the field of recognition and enforcement of arbitral awards can assist us in the procedure of evaluation and enforceability of those decisions. This article aims to study the development of DAB in one introduction, three main parts and a conclusion. Part One will show what a DAB is and discusses different kinds of DAB. Enforcement of DAB decisions will be looked at in Part Two. Finally, Part Three will review the possibility of applying the 1958 New York Convention to DAB decision. The Conclusion will follow with concluding remarks.

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One of the important issues to be taken into account in investment agreements is to define the applicable law or resourcesgoverning the agreement. Upon defining the applicable law, based on the mutual agreement or through applying conflict resolution rules, it is possible for the parties to define the place of reference, interpretation, analysis, and inference of various topics. In the international agreements, such mutual agreements are binding and shall be applied by the
investigating authorityin analyzing and eventually granting the reward as for the disputes raisedout of the agreement. However, in the international commercial agreements, in particular, the investment cases, the arbitration authorities are hardly inclined to have exclusive use of the law or the defined resources. Actually, they commonly have direct or indirect useof other resources (non-defined resources)in different ways. The main subject of this article is the limits of arbitration authorities in referring the cases, using non-defined resources and the impact rate of such resources on the outcome of the agreement.

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Airline passengers in many cases do not sue against the carriers because of damages caused by delays, cancellations and bodily injury, which, of course, has led to the dissatisfaction of passengers with industry and is also in conflict with consumer rights. It is by the fact that Is is not worth taking claims to a national court due to the high cost of litigation, time consuming and insignificant amount of compensation. Therefore, a mechanism is needed to support passengers. In European countries, this support and mechanism has been achieved through arbitration chambers, However based on Article 34 of the Montreal Convention like the Warsaw Convention (Article 32), arbitration as a means of resolving litigation arising from the liability of the carriage of cargo was approved exclusively. The important question is arisen, then, is whether passenger claims can also be referred to arbitration. In this regard, based on the tendency to arbitration and according to the examination of preliminary talks, in addition to the carriage of cargo, to the carriage of passengers is developed and it is proved that there is no prohibition in Iranian law in this regard; In particular, it is not desirable to abandon litigation or refer to the Iranian judicial system, which is incapable of resolving such litigation. Therefore, by accepting the principle of arbitrability of this category of lawsuits, based on the progress of Europeans

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According to the arbitration agreement, the arbitrators have the authority to settle the dispute of the parties. The invalidity of the arbitration agreement or the arbitrator's award will have a mutual effect on each other. On the one hand, issuing a decision by the arbitration authority is based on the authorities of the arbitration agreement; On the other hand, in binding arbitrations, the arbitrator, by issuing a decision once, is freed from further proceedings, unless a further agreement is made by the parties. The necessity of writing an essay is that in the case of annulment of the arbitrator's award, there is a difference of opinion and procedure regarding the subsequent jurisdiction of the judicial authority and arbitration in future disputes in the arbitration and judicial system of Iran. In this essay, this issue has been investigated and it has been emphasized that the wording of the note under Article 491of Iran’s Civil Procedure According to the fact that "in cases where the matter is not referred to arbitration through the court and the arbitrator's opinion is invalidated, the litigation will be dealt with in the court by filing a petition" refers to the dominant case of arbitration, i.e. binding arbitration; However, in absolute arbitrations, the arbitrator's award is annulled, according to the purpose and philosophy of the parties' agreement to arbitrate, the arbitration agreement is not destroyed, and there is still the possibility of settlement by the arbitral institution. The research method in this essay, while studying legal sources using library tools and studying the judicial precedent, is a descriptive-analytical method of applied type.

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commonly, in the third party funding arrangments, the parties undertake not to disclose the contractual information. On the other hand, some legal systems consider transparency and access to the information of these contracts necessary in order to prevent the abuse of the third party funding, including the prevention of Champerty. Consequently, it appears that the contractual obligation of non-disclosure is in conflict with the mandatory obligation to disclose the TPF arrangement. The main question that this article deals with is the relationship between these two contractual and legal requirements and how to balance them.
In order to resolve the conflict between these two obligations, it seems that the scope of the obligation to disclose information should be narrowly interpreted and considered to be exclusive to the disclosure of the existence of theTPF contract. On the other hand, the obligation of non-disclosure includes contract details and those types of information - such as trade secrets - that are not legally required to be disclosed. Another question is whether, like the international investment arbitration, Iran's legal system also deems it necessary to disclose the TPF contract. In response to this question, it should be said that in Iran's legal system, the principle is to prohibit the disclosure of private information of persons without their consent, which includes TPF contract information. However, in cases where there are legal reasons for disclosing information, including suspicious transactions, according to Article 7 of the Anti-Money Laundering Amendment Law, the parties to the TPF contract must disclose contractual information.

 

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Consent and party autonomy, along with the neutrality of arbitral tribunal, are the most featured distinction of arbitration vis a vis other dispute resolution methods. These fundamental features, however, might be affected by the application of unilateral economic sanctions of regional organizations (i.e. European Union) which is indeed for protecting their foreign security policy frameworks and fundamental interests.
In one hand, the arbitral tribunals have to respect the parties’ choices, namely the applicable law (which might be against the sanctions), and in the other hand, the courts are obliged to recognized the European Union sanctions as public policy and overriding mandatory provisions and accordingly, set aside or annul the arbitral awards contrary to these provisions.
Therefore, the main aim of this research project is to study of the effect of European Union economic sanctions on commercial arbitration disputes, as well as the approach of pertinent courts. The key result is that arbitral tribunals in confrontation with such sanctions as jus cogens, rely on their authorities particularly in term of applicable law, recognition and enforcement of the arbitration award.
 

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Nowadays, by the increasing expansion of commercial contracts in the international arena, the use of multi-tiered dispute resolution clauses have been increased. These clauses have many functions for the parties compared to other judicial and arbitration methods. Identifying this issue is very useful in the practical procedure, assuming that the terms of the dispute resolution are binding, the arbitrator starts the arbitration regardless of the observance of these terms by the parties, the arbitration award is invalid due to the lack of competence of the arbitrator, or the violation of the terms is simply a matter of admissibility. A group is of the opinion that non-compliance with the condition of multi-tiered dispute resolution clauses directly affects the jurisdiction, and the arbitrator has exceeded the limits of his jurisdiction, subsequently the decision issued according to the law is null, and it has no legal effect. In contrast, some believe that this issue is related to the admissibility, which is a gentler approach and in line with respecting the sovereignty of the volition governance principle to resolve the dispute through arbitration and non-intervention of the court. Basically, their basis for supporting this theory is that the claim is merely defective in form, and the arbitration agreement between the parties is valid. Regarding the types of legal reactions to non-compliance with the conditions of dispute resolution, suspending the arbitration process at the same time as granting a deadline to comply with the pre-arbitration conditions is preferable to other solutions.
 

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With the establishment and development of special economic zones, the appearance of international trade disputes has increased and focusing on the legal methods of resolving the mentioned disputes has been part of the strategy of the relevant governments. International commercial arbitration is a common and accepted way of resolving disputes in special economic zones. However, some governments have established international commercial courts in these regions in the last two decades due to practical needs. Some features of international commercial courts that are modeled on the rules and methods of international arbitration are: more flexibility in proceedings, the possibility of appointing judges of foreign nationality, allowing the presence of foreign lawyers in court, allowing the parties to agree on conducting private proceedings and expanding the ability to enforce judgments. Also, some gaps in international commercial arbitration, which have been adjusted to some extent in international commercial courts, are: the possibility of a third party entervention, increasing the speed of proceedings, and the independence and impartiality of the investigating authority. In practical terms, also we see a two-way interactive relationship between these two institutions; Because on the one hand, international commercial arbitration has played an important role in the establishment of international commercial courts both in Europe and in Asia, and on the other hand, international commercial courts also play an increasing role in arbitration proceedings and they provide judicial assistance for carrying out and developing the arbitration process or guaranteeing the implementation of arbitration decisions. According to the performance perspective of international commercial courts, their comparative study seems to be a necessary step in order to provide a favorable model that fits the requirements of each country.
 

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the inclusion of an arbitration clause in a contract obliges the parties to settle the dispute through arbitration and refrain from submitting their claims to courts. However, one of the parties may file a lawsuit in court. In that case, important procedural issues may be raised, including what is the effect of the claimant's lawsuit on the waiver of the arbitration clause, what is the effect of the defendant's objection or non-objection by procedural pleas to the existence of the arbitration clause on the court's jurisdiction. The question is can the court decline jurisdiction for substantive proceedings even without the defendant's objection? The decision of General Assembly of Civil Chambers of the Supreme Court, emphasizing the effect of the arbitration clause on the prohibition of the court from substantive proceedings, has not considered the above issues. In this research, in addition to examining the judgment in issue, the various aspects of the defendant's objection to the arbitration clause and the duty of the court in this context have been discussed, and based on the nature of the right arising from the arbitration agreement, it has been emphasized that the role of the will of the parties in invoking or waiving the arbitration clause should be considered by the courts; Something that has not been examined clearly in the judgment of the General Assembly of Civil Chambers of the Supreme Court.