Choice of law governing the nature of the claim by the arbitrators

• Autores: Reza Simbar, Maryam Fatahian
• Localización: QUID: Investigación, Ciencia y Tecnología, ISSN-e 2462-9006, ISSN 1692-343X, Nº. Extra 1, 2017, págs. 2192-2199
• Idioma: inglés
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• Resumen

  • Freedom of the parties in this context has great scope, to the extent that their choices do not include the restrictions of autonomy principle, and their autonomy should be respected. On the other hand, in case of parties’ silence, the arbitrator decides according to appropriate rules of conflict resolution. Appropriate rules of conflict resolution do not mean that the arbitrator, necessarily, should refer to Iran conflict rules for determining the law governing the nature of the claim, but the intention is that the arbitrator has a choice in selecting appropriate rules of conflict resolution, and this is a prevailing trend in international commercial arbitration. In International Commercial Arbitration, in addition to determining law governing the nature of the claim, the law governing the arbitration agreement, and the law governing the procedure of the arbitration, also rises and in this thesis, questions have been raised that are answered as follows: Methods of determining law governing the nature of the claim are different and varied. Iranian legislator ratified the international commercial arbitration law, according to the methods of determining law governing the nature of the claim, and in order to the commercial and economic development. The method of choice of law by the parties is in fact recognizing the principle of party autonomy and accepting the choice of law by both parties, engaging them in resolving their differences, and by implication, (not necessarily) making fair decisions. The research method in this study is theoretical (descriptive - analysis), which the result of this study is that, Iranian legislator ratified the international commercial arbitration law, with considering the above levels and in order to develop Iranian trade and economic and, in fact, it has the same pace and direction with the development of international trade and economic. In such a situation, it seems that the existence of two heterogeneous and conflicting rules, in Article 968 of the Civil Code and Article 27 of the international commercial arbitration law, the situation is not suitable, and therefore, regardless of the Imperatives theory and practice of selection, which was raised on Article 968 of the Civil Code, reviewing the rule of conflict resolution in Article 968 of the Civil Code and amending it in line with the international commercial arbitration law is an interest, based on modern materials and seems inevitable.