Volume 23, Issue 1 (2019)
CLR 2019, 23(1): 157-187 |
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ghobadi S, shahbazinia M, Isaea tafreshi M. مطالعه تطبیقی جهات محدودیت داوری در ورشکستگی در حقوق ایران و آمریکا. CLR 2019; 23 (1) :157-187
URL: http://clr.modares.ac.ir/article-20-26122-en.html
URL: http://clr.modares.ac.ir/article-20-26122-en.html
1- PhD Student of Private law, Faculty of law, Tarbiat Modares University, Tehran, Iran.
2- Associate Professor of Private Law, Faculty of Law, Tarbiat Modares University, Tehran, Iran. , shahbazinia@modares.ac.ir
3- Professor of Private Law, Faculty of Law, Tarbiat Modares University, Tehran, Iran.
2- Associate Professor of Private Law, Faculty of Law, Tarbiat Modares University, Tehran, Iran. , shahbazinia@modares.ac.ir
3- Professor of Private Law, Faculty of Law, Tarbiat Modares University, Tehran, Iran.
Abstract: (4919 Views)
In article 496 of the Procedural Civil Code of procedure in Public and Revolutionary (Enghelab) Courts in civil cases, Iranian’s legislator, has prohibited referring bankruptcy dispute to arbitration. In American law system, such a prohibition has been provisioned with the recognition of the exclusive jurisdiction for special courts to settle the bankruptcy disputes itself in 28 U.S. § 157 –Procedures.
Since the economic crisis in recent years has followed (caused) increasing of bankruptcy in both individuals and trading companies, such a prohibition expels a large number of commercial disputes from the sphere of arbitrable issues. Deprivation of the many benefits of arbitration is justified only if the study of such a prohibition reasons justifies the exclusive proceeding in national courts.
There are ambiguities regarding the domain of this prohibition in both countries. Recognizing the scope of non-arbitrable disputes is depend on the understanding of this prohibition causes. Research results show that the difference between bankruptcy and arbitration codes, in both countries, is the most important reason for such prohibition and this difference is such an important that prevents reconciliation between bankruptcy and arbitration.
In Iranian law system, the mentioned prohibition includes the bankruptcy itself and its basic related issues. In American law system, only the basic issues of bankruptcy are not referable to arbitration. So, non-basic issues are included in the arbitrability principle.
Since the economic crisis in recent years has followed (caused) increasing of bankruptcy in both individuals and trading companies, such a prohibition expels a large number of commercial disputes from the sphere of arbitrable issues. Deprivation of the many benefits of arbitration is justified only if the study of such a prohibition reasons justifies the exclusive proceeding in national courts.
There are ambiguities regarding the domain of this prohibition in both countries. Recognizing the scope of non-arbitrable disputes is depend on the understanding of this prohibition causes. Research results show that the difference between bankruptcy and arbitration codes, in both countries, is the most important reason for such prohibition and this difference is such an important that prevents reconciliation between bankruptcy and arbitration.
In Iranian law system, the mentioned prohibition includes the bankruptcy itself and its basic related issues. In American law system, only the basic issues of bankruptcy are not referable to arbitration. So, non-basic issues are included in the arbitrability principle.
Article Type: Original Research |
Received: 2018/10/14 | Accepted: 2019/06/15 | Published: 2019/06/15
Received: 2018/10/14 | Accepted: 2019/06/15 | Published: 2019/06/15
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