today Thursday, January , 2019

International Arbitration

Iranian law.

Article 454 of the Civil Procedure Code provides that the parties may conflict or dispute to “compromise” will be submitted to arbitration.

Prior to the enactment of International Commercial Arbitration in Iran, international arbitration in Iran’s rights under the provisions of the procedure, but with the approval of the law that the adoption of the Model Law UNCITRAL Arbitration (1985) developed and approved, the provisions of the two from each other, isolated. So to answer the question under discussion, whether an arbitration clause is independent of the main contract or not, we must distinguish between domestic arbitration and international arbitration.

First topic: Domestic Arbitration

Provisions relating to domestic arbitration in Chapter VII of the Civil Procedure Code Iran (1379), the materials 454 to 501 come, but the question of the competence of the tribunal in dealing with its jurisdiction and the issue of the independence of the arbitration clause explicitly in this material are not mentioned and we shall some lawyers said, referring to Article 461 of decree law have tried to extract and independent arbitration clause do not know.

The rules relating to the stipulation in Articles 233 to 246 of the Civil Code stated.

With respect to the subject matter of the contract or explain aspects are complementary. Although arbitration clause as a condition or result of action taken, but the real story is that as long as the dispute between the parties is not established, relevant arbitration clause does not and may never be referred to arbitration. This, in spite of certain conditions customary in a transaction contrary to the requirements of tradition and intellectual condition (act or result) is in the contract. Thirdly, referring the matter to arbitration as provided in Article 455 of the deal .d.m. Prescribed, type “Trading conditions”, but separate issues and subject to a separate creative intention.

Even if it is said arbitration clause in the sentence stipulation, it still means full compliance with the fate of the original contract because on the circumstances of the contract in civil rights cases can be found in the liquidation of main contract does not necessarily dissolve the condition in does not have. This rule, in other obligations as well. [11] The main criterion in this matter, in our opinion, degradation of the condition of the original contract. The same reasoning applies in the case of breakdown arbitration clause from the main contract.

This is true with the intention to refer the parties to arbitration closer. So to claim the invalidity of the original contract or invalidity of the arbitration clause does not apply.

Some Referring to Article 461 Code of Civil Procedure have said in the judgments of Interior, the alleged invalidity of the original deal, the issue of the scope of foreign arbitration because the court will have to dispute the parties regarding the transaction will investigate and realization of transaction authentication, and then establish the validity of the transaction, the arbitration tribunal is formed and so the condition is not independent of the contract. Article 461 .d.m. Says “when compared to the original transaction or agreement between the parties concerning the judgment of the Court of First To review and comment on track. “We think it was in fact directed the preceding two articles on how to choose the official’s claim that the Code of Civil Procedure former (1328) the matter under the number 636 was found with the words began “If, on the material before” and had no doubt that the provisions of Article 636 refers to Article 635. But supporters of the independence of the arbitration clause as a matter that warrants an independent sovereign states, are known. Then in Article 461 mandates a sideshow also said, that if in such cases, on the basis of the transaction or contract between the parties is essentially turns to the appointment of arbitrator of the tribunal does not seem so must the court the contract or it’s a major deal and then to the appointment of arbitrator. Article 461 is not a general sense in the light of the preceding Article, be interpreted. Because if the parties challenge

its previously announced or shown otherwise is selected (for example, by the installer), tribunal properly constituted and ready to work and the need for court intervention to resolve disputes about the deal. Legislative history in Articles 635 and 636 of .d.m. Former reflects this understanding Ast.mbhs second international arbitration, international and commercial arbitration, but arbitration clause expressly accepted the independence issue and debate and doubt is closed. Article 16 (1) of the Commercial Arbitration International has appointed “the judge about his qualifications as well as the existence or validity of the arbitration agreement decision. Arbitration clause that is part of a contract, the implementation of this law as an agreement is considered to be independent. ” , that the arbitration clause is independent of the original contract, consider. Some countries have strict regulations regarding the independence of the arbitration clause imposed and some with the interpretation of the terms of an arbitration clause, the intention of the parties in their search for terms and conditions in contracts and business relations the previous parties or conventions relevant to the main contract will not affect the validity of the arbitration clause and the arbitration authority and differences in hand Will also handle than the original contract. This is the same rule as “competent jurisdiction” or “jurisdiction over qualification” to be remembered. Article 16 (1) of the Law of International Commercial Arbitration Act of 1376 explicitly accepted these rules and to enter the Iranian legal system. In other words, international commercial arbitration any feature or characteristic that is unique for this type of arbitration to recognize the independence of the arbitration clause and the arbitration consider internal void. mentioned as well as the interpretation of Article 461 Civil procedure Code gotten out and according to the provisions of Article 16 of the law on international commercial arbitration Iran, it is the idea that the rights of the judgments of the arbitration clause of the original transaction is independent and tribunal can also handle claims related to the transaction, defended. The idea is to strengthen and expand the arbitration institution that has been embraced by the public, especially in the face of commercial disputes.