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Challenges of Referral to Arbitration of Public and State Property, the Subject of Article (139) of the Islamic Republic of Iran’s Constitution
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Seyedmohammadmahdi Ghamami   , Mostafa Rezaee * |
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Abstract: (1470 Views) |
Article 139 of the Constitution, considering the experiences before the Islamic Revolution of Iran, has designed a strict approach for parliamentary oversight over compromise and the referral to arbitration of important and foreign disputes, and has assigned the approval of statutory laws in this regard to the Parliament. Given that important and foreign contracts are one of the pillars of the country’s development, delays in approving legal mechanisms have resulted in violations of the Constitution and the undermining of national interests after 45 years. Although clause (15) of the legislative system's general policies also regards the enactment of the mentioned law as a priority for the country, no effective action has been taken so far by the relevant authorities. This has caused the scope of Article 139 and its implementation mechanism to remain unclear, and for this reason, sometimes this article is not enforced, or the authorization of some other institutions replaces the Parliament’s permission. Moreover, the meaning of “foreign party” and “important cases” remains unknown until the relevant law is enacted. In line with analyzing this issue, the main question of this article is: What are the challenges of referring public and state property disputes to arbitration under Article 139 of the Constitution? The authors, emphasizing clause (15) of the legislative system's general policies and critically reviewing court adjudications and interpretations by supervisory institutions, consider the solution to be a separation between the stage of concluding the arbitration contract and the stage of referral to arbitration, as well as the necessity of enacting a law to decisively determine the steps to be taken in each contract’s process.
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| Keywords: Arbitrability, Important Contract, Foreign Contract, Public Property, State Property |
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Type of Study: Research |
Subject:
Special
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