Capacity of Persons for Referring to International Commercial Arbitration (With Emphasis on Iranian Law)

Elmi1*, Hossein Elmi1; Morteza Shahbazinia2, Morteza; Issaei Tafreshi3, Mohammad; Sadeghi Moghaddam4, Mohammad Hasan

Capacity of Persons for Referring to International Commercial Arbitration (With Emphasis on Iranian Law)

Authors

Hossein Elmi1 Elmi1* ¹

Morteza Morteza Shahbazinia2 ²

mohammad Issaei Tafreshi3 ³

Mohammad Hasan Sadeghi Moghaddam4 ⁴

¹ 1. Ph.D. student in Private Law, Department of Law, Tarbiat Modares University, Tehran, Iran

² 2. Assistant Professor, Department of Law, Tarbiat Modares University, Tehran, Iran

³ 3. Professor, Department of Law, Tarbiat Modares University, Tehran, Iran

⁴ 4. Associate Professor, Department of Law, University of Tehran, Tehran, Iran

Abstract

In this paper, in order to explain the scope of the parties' will in one of the most fundamental issues related to arbitration, the capacity of natural and legal persons for referring to arbitration has been studied. The study of legal verdicts and thoughts (judgments and opinions), national and international rules, and regulations governing international commercial arbitrations, simple laws, conventions and rules of international arbitration organizations show that the dominance (governance) of the freedom of will principle is always present in these subjects. However, in some legal systems, there are some limitations for legal persons of public law such as predicted in the Article 139 of Iranian Constitution. These constraints that are exceptional only in the realm of internal rights, are respected, and based on the international commercial arbitration procedures in the international commercial, there are ignored because they say these limitations are contrary with the international and transnational public orders.

Keywords

Party autonomy

Public order

International arbitration

International commercial

Article 139 of Iranian Constitution