نوع مقاله : مقاله علمی پژوهشی
نویسنده
دانشجوی دکتری حقوق نفت و گاز، دانشکده حقوق، دانشگاه شهید بهشتی، تهران، ایران
چکیده
کلیدواژهها
موضوعات
عنوان مقاله [English]
نویسنده [English]
Nowadays, the use of conciliation as one of the alternative dispute resolutions (ADR) is expanding in many parts of the world. The reason is behind the numerous advantages that this procedure has in its essence for solving commercial disputes with high efficiency. Now the questions that are raised are as follows: Are there any rules of conciliation in Iran or not? If the previous question is positive, are these rules effective? And what are the rules of conciliation in the laws and regulations of other legal systems? As a brief answer, it should be noted that in Iran, despite the existence of legal rules such as conciliation in the civil law and mediation in the civil procedure law, still conciliation as a dispute resolution method has not reached maturity and has not found an independent position among other procedure. This article is based on the premise that the rules of conciliation in the current legal system of Iran are significantly different from the rules of conciliation such as the UNCITRAL model law, the rules of the International Chamber of Commerce, the directives of the European Union, the Singapore Convention or even the national law of Singapore; In such a way that currently it cannot be used as an independent and efficient method in commercial contracts.
Therefore, while analyzing the current laws in Iran, with a comparative perspective, the author tries to provide a comprehensive vision of effective regulations in conciliation. Although the principle is on confidential proceedings in the conciliation method, exceptions should also be made. According to the directive of the European Union, the principle of confidentiality is maintained and no person, including the mediator, has the right to disclose the resulting documents except: (a) in cases where this is necessary for the essential considerations of public order of the relevant member state, especially when for it is necessary to ensure the protection of the best interests of children or to prevent harm to the physical or mental integrity of a person; or (b) in cases where disclosure of the content of the agreement resulting from the mediation is necessary for the purpose of implementing or enforcing that agreement. The result of this paper revealed that, Another measure that needs to be fully anticipated is the issue of not being able to refer to the documents and evidence presented by the parties in other proceedings, and this issue originates from the main philosophy of compromise; As it was said, sometimes the parties consider compromise as a method of resolving their dispute, when condemning the other party is not their main goal, and in most cases they want to continue their business relationship with him. In principle, in order to obtain the satisfaction of the other party, they may waive some of their indisputable rights, or accept some of the violations of their obligations, or present reasons and documents to their detriment, so that they can show their goodwill to the other party.
کلیدواژهها [English]
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