Obstacles of Iran's Banking System in Deviating from the General Rule of Referring Disputes to Courts with Regard to the Economic Analysis of Rights
Document Type : Original Article
Authors
1
PhD in Private Law, Faculty of Law, Shiraz University, Shiraz, Iran.
2
PhD Student in Public Law, Faculty of Law, Central Tehran Branch, Islamic Azad University, Tehran, Iran.
Abstract
Despite the current approach of the Iranian government aimed at reducing the intervention of the courts as the representative of the government in economic disputes, including banking disputes, and handing over these matters to the private sector, the external appearance of which can be found in paragraph A of Article 116 of the law of the sixth five-year economic development plan., social and cultural of the Islamic Republic of Iran approved in 2015, as well as numerous meetings of the Social and Crime Prevention Department of the Judiciary regarding arbitration with private and state banks and the Central Bank of the Islamic Republic of Iran and even concluding a memorandum of cooperation between The Arbitration Center of Iran Chamber of Commerce and the Supreme Council of the Association of Private Banks and Credit Institutions in 2018 with the subject of referring disputes or lawsuits in favor of or against banks and credit institutions to the Arbitration Center of the Chamber and resolving them through arbitration and mediation. The mentioned center continues to witness the insistence of Iranian banks in using the judicial method in the settlement of banking disputes. One of the reasons for the aforementioned insistence is the existing obstacles in the field of settlement of banking disputes using non-judicial methods. It seems that removing the mentioned obstacles will increase the choice of banks in determining the appropriate method of dispute resolution between judicial and non-judicial methods and promote the aforementioned methods.
Keywords
Reference list:
Arfa Niya, Beheshid and Mulla Ebrahimi, Emad, "Peaceful solution and alternative conditions; dispute resolution methods in modern oil and gas industry upstream contracts with an emphasis on the IPC contract", Journal of Energy Law Studies, 4, 2(2017), 301 (in Persian)
Elsan, Mostafa, Laws of Central Bank, first edition, Tehran: Publications of Monetary and Banking Research Institute of Central Bank of Islamic Republic of Iran, (2013) (in Persian)
Elsan, Mostafa, "The role of the central bank in the settlement of banking disputes", Quarterly Journal of Banking Research, 21(2013), 427-434. (in Persian)
Emami, Seyyed Hasan, Civil law, second volume, second edition, Tehran: Islamieh Publishing House, 1983. (in Persian)
Iranshahi, Ali-Reza, "Arbitrability Criterion in Judicial Supervision of International Commercial Arbitration Award", Shahid Beheshti University Journal, 15, 58(2011), 2. (in Persian)
Park, William, translation: Mohebi, Mohsen, "Arbitration in Banking Contracts", Legal Journal, International Legal Services Office of the Islamic Republic of Iran, 2013, 28 (in Persian)
Jamshidi, Mohammad Reza. "Transformation of the structure of the central bank in the new plan of the Islamic banking system", forsat emrooz newspaper, dated 08/17/2018. (in Persian)
Juneidi, Laya, Ghiyath Vand Qazvini, Nastaran, "Arbitrability in Iran's legal system with an emphasis on judicial procedure", Institute of Humanities and Cultural Studies, 2, 108 (2016), 36 and 28. doi:law.2018.30709/10.22096 (in Persian)
Haqiqat, Seyyed Sadeq, "The role of expediency in Islamic government from the point of view of Imam Khomeini", Political Thought in Islam Quarterly, 2, 6(2014), 90-92. (in Persian)
Darvishi-Hoveida, Youssef, "Thinking about conciliation as a friendly method of dispute resolution in international trade law", Legal Research Magazine, 16, 64(2012), 228. (in Persian)
Rezaei, Ali and Abdulrahimi, Maliheh, "Effective mechanism for resolving international disputes of Iranian banks with regard to jurisprudential capacities", Journal of Islamic Law, 2, 23(1401), 295-326.doi: law 2022.239565 .2913/10.30497. (in Persian)
Zangiabadi, Mohammad Reza, "Validation of the arbitration clause in banking contracts with a jurisprudential and legal approach", Applied Jurisprudence and Law Research Quarterly, 1, 1, (1400) 48. (in Persian)
Sarvari Moghadam, Mostafa, "Comparison of the role of court and arbitration in resolving international commercial disputes", Legal Teachings Journal, Razavi University of Islamic Sciences, 7, 13(2010), 135-138. (in Persian)
Sadeqi, Mohammad, "Private claim for damages caused by stock market’s manipulation", Rai Quarterly: Judicial Opinion Studies, 6, 18(2016), 16-18.doi:10.22106/JCR.2018.77286.1113 (in Persian)
Sadeqi, Mohammad; and Sadeqi Moqadam, Mohammad Hassan; and Salehi, Ali-Asghar, "Competent Authority for Dispute Resolution in the Iranian Capital Market", Journal of Private Law Studies, 45, 2(2014), 245-244.doi :10.22059/JLQ.2015.54447 (in Persian)
Sadeqi, Mohammad and Gholami, Samira, "Legal position of non-judicial members in quasi-judicial authorities", Administrative Law Quarterly, 30, 9(2022), 82-103. (in Persian)
Abd Yazdan, Mostafa, "Analysis of the approach of the courts towards the arbitration in lawsuits and in public and state property", two quarterly research journal of Private Laws of Adalat, 9(2017), 31. . (in Persian)
Atashnneh, Mansour, Kohani, Seyyed Alireza Hashemizadeh, Atashneh, Zahra, "Mechanism for the resolution of domestic and international disputes", Journal of Legal Research, 48, 20(2021), 108-111.doi:jlr.2022.146014/10.48300 (in Persian)
Atashneh, Mansour, Hashemizadeh Kohani, Seyyed Alireza, Atashneh, Zahra, Pasban, Mohammadreza, "Arbitrability of Banking Disputes in Iranian Law", Civil Procedure Quarterly, 1, 1(2021), 122. (in Persian)
Alidousti, Nasser, "Capacities of Article 139 of the Constitution of the Islamic Republic of Iran", Strategic Studies Quarterly, 11, 1 (2007), 87. (in Persian)
Fatahi, Mahdi, "Arbitration regarding public and government property cases in the judicial procedure of the courts of the Islamic Republic of Iran", Rai, 11(2014), 168. (in Persian)
Farhan Jam, Mahsa, The Immunity of Central Banks in International Law with a Look at the Case of the Islamic Republic of Iran, First Edition, Tehran: Majd Scientific and Cultural Association Publications, 2014. (in Persian)
Qobadi, Sahar; and Shahbazi-Nia, Morteza; and Esaee Tafreshi, Mohammad, "Comparative study of arbitration limitations in bankruptcy in Iranian and American laws", Comparative Law Studies, 23, 1(2018), 175. (in Persian)
Gharib, Rokhsareh; and Jani-pour, Mojtaba, "Comparative study of the scope and criteria of criminal mediation in the laws of Iran, England and Belgium", Research Journal of Criminal Law, 8, 1 (2016), 218. DOI: 10.22124/JOL. 2017.2294 (in Persian)
Katouzian, Nasser, Civil Law Preliminary Course, Volume 1, 9th Edition, Tehran: Ganj Danesh Publications, 2018. (in Persian)
Karimi, Abbas; and Parto, Hamidreza, "Arbitrability of claims related to public and government property", Law Research Quarterly, Year 4, 14, 36, (2011), 18. (in Persian)
Keshavarz Motamedi, Sakineh, The Importance of Arbitration in Banking and Administrative Contracts (Comparison of Iranian, American and British Laws on the Necessity of Arbitration), First Edition, Tehran: Gap Publications, 2017. (in Persian)
Mohebi, Mohsen, selection of arbitration opinions of Iran Chamber of Commerce Arbitration Center, third volume ,first edition, Tehran: Shahr Danesh Institute of Legal Studies and Research Publications, 2016. (in Persian)
Masjid Saraei, Hamid, Jurisprudence Terminology, second edition, Tehran: Revayat no Publications, 2013. (in Persian)
Masoudi, Alireza, Banking Law, second edition, Tehran: Pishbord Publications, 2018. (in Persian)
Moqimi, Mahdi, "Criminal-legal study of economic crimes (with an emphasis on national and transnational prevention strategies)", Criminal Science Research Quarterly, 75, 2 (2016), 73. (in Persian)
Mirzaei Monfared, Gholam Ali, Laws of the stocks Market Disputes Division, first edition, Tehran: Mizan Legal Foundation Publications, 2011. (in Persian)
Nezafatian, Ali. "Structural developments of the central bank in the new year", Forsat Emrooz newspaper. (in Persian)
Nikbakht, Hamidreza and Sadeqi, Mohammad, "Solving the professional dispute of stock market activists; passing the obligation to alternative methods", Administrative Law Quarterly, 27, 8, (2021), 47-72. (in Persian)
Magureanu,George,Mediation a Conflict solving Modality in the Banking Area,Acta Universitatis Danubius. Juridica(Acta U.Danubius JUR),Vol.8,No.1,2012.(in English)
Oluwabiyi,Adeol A(2015),"A Comparative Legal Analysis of the Application of Alternative Dispute Resolution(ADR)to Banking Disputes",journal of Law,Policy and Globalization,(J.L.POLY & Globalization),Vol.38,No 1.4-6. (in English)
