In The Name Of God
Studies, activities and actions related to arbitration and its development
By: Kioumars Sepehri
Given the importance of the arbitration debate and the need to expand it in line with the comprehensive development of the country and considering the various aspects of the arbitration body and its nature, I have always been interested in the arbitration debate and have studied in this field. Since 2007, when the issue of adjournment of proceedings in the judiciary was seriously discussed, one of the consequences of which was the decline in the quality of work of some authorities, I studied and paid more attention to arbitration, so that the establishment of an arbitration center in the Bar Association and the development of arbitration through activity I fell for lawyers and other lawyers and the establishment of permanent arbitration centers. In this regard, in March 2009, I participated in the conference "The 100th anniversary of the establishment of the Arbitration Institution in Iranian Law" (the result of this conference is available in 480 pages as a book "Proceedings of the Conference on the 100th Anniversary of the Establishment of Arbitration in Iranian Law"). Be) and I became more acquainted with the eminent professors of this field. In February 2012, I participated in the first "Arbitration Vote Writing Workshop" and in July 2012, I participated in the Arbitration Training Course organized by the Arbitration Center of the Iranian Chamber of Commerce, Industries and Mines.
During my career in important and complex cases as an arbitrator or lawyer, I have issued a verdict or defense (contracting agreements, disputes related to companies, commercial contracts, disputes related to professional issues, etc.) to In addition to various and completely specialized and technical contracts with various topics, I have set up various companies and authorities that have included refereeing conditions. And in the dispute resolution commissions related to these contracts, I have repeatedly presented a company or an advisory opinion.
In order to establish the Arbitration Center in the Bar Association of Kermanshah and Ilam Provinces (due to my continuous activity since I took action to establish and operate the Center and its two management courses) since 2010, together with one of our good lawyers, we have prepared the statute of the Arbitration Center It was finally approved by the board of directors in January 2011. Since then, to formulate the rules and regulations of arbitration and mediation of the center's arbitration center with my management and participation in a six-member board, spending hundreds of hours of time, these rules and regulations can be said to be the most up-to-date rules and regulations of organizational arbitration. Economic and social conditions of the day (compiled). The discussion of mediation and its rules, which is a kind of complement to the arbitration body, is innovative and unique in its kind, and it can be said that it is presented for the first time in Iran. These activities eventually led to the establishment of the Arbitration Center as a permanent (organizational) arbitration institution in the Bar Association, and its establishment and operation was officially announced at the Independence Day celebration of the Bar Association in March 2012.
Also, in order to register the activities and make more use of all the centers and other institutions, with the support of the center and the honorable members of the board of directors of the fifth term of the association in 1392, the book "Rules and Rules of Arbitration and Mediation In addition to the rules related to arbitration, it was published and widely accepted by other centers and institutions and some judicial authorities.
With the establishment of the Arbitration Center in the center, according to my background, I was elected as the chairman of the center's board of trustees and always along with other esteemed colleagues who are members of the board of trustees and the arbitration commission, to introduce and develop the center's judging center. Significant work has been done, which we hope will benefit the Iranian economic and legal community, especially the Bar Association and our dear colleagues.
Also according to. Based on the establishment of the Arbitration Center in the Association of Official Experts of Justice of Kermanshah Province, according to my actions and experiences, I was also elected as the Chairman of the Board of Trustees of the Arbitration Center of that center. Also, the training of trusted judges of the center has been done with the cooperation of other members of the Board of Trustees.
In order to improve my professional performance and due to my interest and responsibility, I have tried to read articles and books related to judging, and in this regard, I have reviewed dozens of articles and books. I hope to get a chance to be a part of what I have learned. I will provide this article to those who are interested in this interesting field.
For a brief introduction to the Arbitration Institution and the Arbitration Center of the Bar Association, the following is the preface written on the book:"Arbitration and Arbitration Center of the Bar Association of Kermanshah and Ilam Provinces", which was written in January 2013, is in your opinion.
Introduction to the arbitration by President of the Kermanshah and Ilam Bar Association
According to some professors of jurisprudence, arbitration is the settlement of disputes between parties outside the court by the person or persons chosen by the parties or third parties.
Historically, arbitration has emerged as a method of resolving disputes before judgment, because judgment actually came into being when public power arose in society, but arbitration has simply existed in all societies. In Islamic law, arbitration in the form of a consolidating judge has also been discussed. But the codified and legal form of arbitration in Iranian law has a history of one hundred and several years.
Today, arbitration is one of the most common ways to resolve disputes and lawsuits. Given the possibility of selection of arbitrators or arbitrators by the parties to the dispute and the broad powers of the parties in determining the rules governing the form of proceedings and the prevailing law, the arbitration method is very flexible compared to judicial proceedings and this feature has led to significant acceptance. In domestic proceedings, arbitration is an alternative to judicial review. But in the case of international commercial litigation, in some cases it can be said that arbitration is a unique and irreplaceable method.
In addition to its advantages over the judiciary, arbitration is, from one point of view, a very good way to privatize litigation and judgment (which in all governments is a state and a clear example of the exercise of sovereignty).
On the other hand, economic growth and development of the country require that arbitration and arbitration centers be developed, as if arbitration has been institutionalized in developed countries for many years.
Given the importance of arbitration, the legislature has paid special attention to it in recent years, including Article 211 of the Law on the Fifth Five-Year Development Plan of the Islamic Republic of Iran, the judiciary is required to prepare a bill for independent domestic and international arbitration. Accordingly, the judiciary seeks to establish and develop arbitration centers.
The idea of establishing an arbitration center in the Kermanshah and Ilam Provincial Bar Associations dates back to about six years ago. When the officials of the judiciary took measures to control the large volume of cases submitted to the judiciary, a meeting was held in this regard and a number of lawyers were consulted in this regard. While emphasizing the issue of arbitration and its expansion, I consider the Bar Associations as the most worthy and deserving institution for establishing arbitration centers and consider it an important solution to improve the position of Bar Associations and its members in terms of increasing credibility and recognizing their role in society. And I announced financially and to strengthen income to gain more independence. Based on this, since 2010, with the help of an active and punctual colleague, Mr. Amir Basiri, the statute of the Center has been compiled and then with the cooperation of a group of hardworking colleagues (Mr. Aslan Weiss, Kaveh Neyestani, Hamid Moghaddasi and Majid Naseri) to compile the rules and regulations of the Arbitration Center. Numerous and continuous meetings were held, which resulted in the development of rules and regulations that, in addition to providing significant assistance to the arbitrators in order to properly and consistently (with respect to the rights of the parties), tried to establish the principles of confidentiality, impartiality, independence, Ensure the accuracy and speed of the proceedings and ensure that the parties are more comfortable with judging their differences.
In this regard, while using the rules and regulations of the Arbitration Center of the Iranian Chamber of Commerce, Industries and Mines and the rules of arbitration of the Arbitration Commission of the Center, the regulations of the International Chamber of Commerce (ICC), Tehran Regional Arbitration Center (AALCO), The principles and rules of the procedure of transnational civil proceedings, etc. have been considered. The experience of legal and judicial work of Gary's colleagues and some esteemed judges has also been used, and it has been possible to develop rules that are in line with the needs of the region.
There are also separate rules and regulations for mediation and compromise, which are unique and innovative, and will certainly become more important in the future. In addition, in order to support and strengthen the Arbitration Center and its elements, the Arbitration Commission has been predicted and formed as one of the commissions of the Bar Association, and its duties such as: monitoring the performance of arbitrators, analyzing, compiling and collecting issued votes, have been monitored. The process of protesting against the opinions and pathology of various issues of the Arbitration Center, providing advice to the judges and discussing the legal gaps and criteria of the Arbitration Center, efforts to develop and culture of arbitration, etc. have been considered for it. He adds that the plan to establish an arbitration center in the Bar Associations in 2012 was proposed by the Kermanshah and Ilam Center to the National Union of Bar Associations of Iran (Escoda), which was welcomed (Minutes dated 4/28/91 of the Escuda Executive Council) So that now in several other centers, the arbitration center has been established and considering the sending of rules and regulations of the arbitration center for all centers, we hope that this will cause synergy and use of the initiatives as well as the creation of acquired rights for the centers and Their members should be judged (according to the law) in our beloved country in order to have organizational centers. In the end, I would like to remind you that in the relevant proposals, the bills and plans that have been presented to formulate the rules of advocacy have always emphasized the establishment of an arbitration center and the development of arbitration as one of the duties of the centers. Consider this.
Arbitration and Arbitration Center of Kermanshah and Ilam Provincial Bar Associations at a glance
Arbitration:
The settlement of disputes between parties outside the court by the person or persons chosen by the parties or third parties.
Historically:
Arbitration has emerged as a method of resolving disputes before judging. In Islamic law, arbitration has also been considered and emphasized in the form of a judge of consolidation. The first legal provisions on arbitration in Iranian law are related to the Law on the Principles of Legal Trials, adopted in 1289, and since then, various regulations on arbitration have been adopted.
Importance of Arbitration Institution:
Along with the development of different parts of our beloved country, Islamic Iran, and like developed countries, in such a way that in the general judicial policies (2002) and the five-year general judicial policies (2009) approved by the Supreme Leader, the judiciary is obliged to It has become pervasive and litigation has been settled through arbitration and arbitration. In addition, according to paragraph "f" of Article 211 of the Law on the Fifth Economic and Social Development Plan of the Islamic Republic of Iran, the judiciary is obliged to prepare an independent domestic and international arbitration bill.
Advantages of Arbitration:
Compared to other methods of handling and resolving disputes, no one is covered, speed of trial, cost savings, confidentiality, specialization, arbitrariness of choice, rule of will of the parties on applicable regulations, active participation The parties in the arbitration process, increasing the possibility of compromise between the parties, the final and binding decision of the arbitrator is only part of the benefits of arbitration. Of course, the description of the advantages and disadvantages of arbitration and the disputes that can be referred to arbitration should be sought in the writings of professors..
Organizational arbitration:
In general, arbitration is done in two ways: case arbitration, organizational arbitration. Case or incidental arbitration means that there is no organization or organization to manage the arbitration process and the parties and the arbitrator are responsible for holding and managing the arbitration process, but in organizational (permanent) arbitration, an organization or arbitration institution is responsible and Management is the flow of judgment. Organizational arbitration centers in Iran are very limited and very young in terms of history. The Arbitration Center of the Iranian Chamber of Commerce, Industries and Mines and the Tehran Regional Arbitration Center are two organizational arbitration centers established under special laws. Also, the Central Bar Association (Tehran) has been establishing an arbitration body for several years. Recently, most of the Bar Associations, with the initiative and efforts of the Bar Association of Kermanshah and Ilam Provinces, have been trying to establish an arbitration center.
Kermanshah and Ilam Bar Association Arbitration Center:
Officially started on March 28, 2013. The organizational structure of the center is designed to maintain its health, dynamism, maturity and credibility. The center has a detailed statute, rules and regulations of arbitration and in accordance with the current situation and economic conditions, the table of arbitration costs is appropriate and flexible and can be changed with the conditions of the parties and the subject of the case, the arbitration commission (consisting of interested lawyers who are scientific and He is the technical supporter of the Arbitration Center and is a kind of supervisor of the work of the judges and the performance of the Arbitration Center). Trusted judges for whom special educational, experimental and practical health conditions have been considered. The Arbitration Center has a board of trustees consisting of three lawyers who are members of the board of directors of the association and are responsible for selecting judges and specialized and experienced judges according to the subject matter of the dispute, as well as supervising the work of judges and controlling the arbitrator (before signing it). And ... is the elected secretary of the board of trustees who is in charge of the executive affairs and provides the preparations for the work of the judges and the secretariat (which operates under the supervision of the secretary and consists of a number of experts and staff). Finally, the center has intermediary rules that are unique and innovative in their kind in Iran, and new horizons will be opened in resolving disputes.
In summary, it would not be an exaggeration to say that at present the most coherent and efficient organizational arbitration center in Iran (in general) is the arbitration center of the Kermanshah and Ilam Bar Association. In addition, the preference of organizational (permanent) arbitration over occasional (accidental) arbitration among experts is obvious.
Execution of Arbitration Award:
Like the execution of court rulings, it is guaranteed based on the emphasis of Article 488 of the Code of Civil Procedure, and in this regard, there is no reason for the convict to express his opinion and exercise his rights and implement the provisions of the verdict.
Sample of Arbitration Condition:
To use the services of the Arbitration Center of the Kermanshah and Ilam Provincial Bar Association, it is sufficient to include the following conditional sample in the contract or sign it separately. Also, each party can use (even Without the agreement or condition of arbitration) refer to the arbitration center and request negotiations with the party and resolve their dispute.
"All disputes and lawsuits related to this contract or its consequences, such as concluding, validating, terminating, interpreting, violating and enforcing it, will be referred to the Arbitration Center of the Kermanshah and Ilam Bar Association to comply with the statute and other rules of the center." The final and binding form should be resolved. In addition to the applicable rules, the arbitrator shall also observe the relevant custom. "This condition of arbitration is considered an agreement independent of the original contract and is in any case binding."