Volume 28, Issue 2 (2024)
CLR 2024, 28(2): 135-164 |
Back to browse issues page
Download citation:
BibTeX | RIS | EndNote | Medlars | ProCite | Reference Manager | RefWorks
Send citation to:
BibTeX | RIS | EndNote | Medlars | ProCite | Reference Manager | RefWorks
Send citation to:
Mohseni H, Ghasemi S. A Comparative study of Procedural confrontation with Arbitration Agreement in Court (critique & Justification of Judgment No. 0200023 of the General Assembly of Civil branches of the Supreme Court). CLR 2024; 28 (2) :135-164
URL: http://clr.modares.ac.ir/article-20-74763-en.html
URL: http://clr.modares.ac.ir/article-20-74763-en.html
1- Associate Prof., Department of Private and Islamic Law, Faculty of Law and Political Science, University of Tehran, Tehran, Iran (Corresponding Author) , hmohseny@ut.ac.ir
2- Ph.D. Student in Private Law, Faculty of Law and Political Science, University of Tehran, Tehran, Iran
2- Ph.D. Student in Private Law, Faculty of Law and Political Science, University of Tehran, Tehran, Iran
Abstract: (419 Views)
the inclusion of an arbitration clause in a contract obliges the parties to settle the dispute through arbitration and refrain from submitting their claims to courts. However, one of the parties may file a lawsuit in court. In that case, important procedural issues may be raised, including what is the effect of the claimant's lawsuit on the waiver of the arbitration clause, what is the effect of the defendant's objection or non-objection by procedural pleas to the existence of the arbitration clause on the court's jurisdiction. The question is can the court decline jurisdiction for substantive proceedings even without the defendant's objection? The decision of General Assembly of Civil Chambers of the Supreme Court, emphasizing the effect of the arbitration clause on the prohibition of the court from substantive proceedings, has not considered the above issues. In this research, in addition to examining the judgment in issue, the various aspects of the defendant's objection to the arbitration clause and the duty of the court in this context have been discussed, and based on the nature of the right arising from the arbitration agreement, it has been emphasized that the role of the will of the parties in invoking or waiving the arbitration clause should be considered by the courts; Something that has not been examined clearly in the judgment of the General Assembly of Civil Chambers of the Supreme Court.
Article Type: Original Research |
Subject:
Comparative Law
Received: 2024/04/20 | Accepted: 2024/05/31 | Published: 2024/08/31
Received: 2024/04/20 | Accepted: 2024/05/31 | Published: 2024/08/31
Send email to the article author
| Rights and permissions | |
 |
This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License. |