Volume 20, Issue 4 (2016)
CLR 2016, 20(4): 1-23 |
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Bagheri M, Talebzadeh Torghabeh F. Possibility of Application of Conflict Rules to International Disputes of Securities Transactions (analysis of Distributive and Corrective Justice). CLR 2016; 20 (4) :1-23
URL: http://clr.modares.ac.ir/article-20-7264-en.html
URL: http://clr.modares.ac.ir/article-20-7264-en.html
1- Associate Professor, Faculty of Law, Department of Privat Law, Tarbiat Modares University, Tehran, Iran.
2- Master of Art of international commercial economic law, University of Tehran, Iran
2- Master of Art of international commercial economic law, University of Tehran, Iran
Abstract: (9476 Views)
Securities transactions, like any other transactions, are primarily subject to contract law; however because, of government intervention in trading, these securities, by passing special legal regime called “securities regulations”,can not be considered as a subject of pure private law any longer (corrective justice) as they are also now in a sense under public law (distributive justice).
If we consider that conflict rules are only applied in private law cases and their application in public law cases has been, generally, prevented by legislators, a challenge for private international law is inevitable in cases that securities transactions place in the field of public law. So, if the court describes the case as a matter of private law, conflict rules can be applied, but if the judge describes the case as a matter of a public law, applying conflict rules is not permitted, and the courts usually apply their own countries, legal regimes.
In this article, we initially try to shed light on different legal regimes to the extent, which is related to the securities law including property law, contract law and securities regulations. Then we study the possibility of applying conflict rules in each legal regime.
If we consider that conflict rules are only applied in private law cases and their application in public law cases has been, generally, prevented by legislators, a challenge for private international law is inevitable in cases that securities transactions place in the field of public law. So, if the court describes the case as a matter of private law, conflict rules can be applied, but if the judge describes the case as a matter of a public law, applying conflict rules is not permitted, and the courts usually apply their own countries, legal regimes.
In this article, we initially try to shed light on different legal regimes to the extent, which is related to the securities law including property law, contract law and securities regulations. Then we study the possibility of applying conflict rules in each legal regime.
Keywords: conflict of laws, Private international law, Securities regulations, Distributive justice, Corrective justice
Received: 2016/05/3 | Accepted: 2017/02/19 | Published: 2017/02/27
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