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An Analysis and Critique of the Procedural Rules for Dispute Resolution at the Securities Market Arbitration Board
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Mahdi Amini *   , Hosein Kaviar , Elyas Yari |
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Abstract: (177 Views) |
The Securities Market Act of 2005 vests the jurisdiction to adjudicate professional disputes within this market in the Arbitration Board, as stipulated in Article 36 of the Act. However, the Act neither specifies the procedural rules or its underlying principles, nor does it explicitly subject the Board to the provisions of the Code of Civil Procedure. In light of this legal lacuna, and after years during which proceedings before this body were, in practice, conducted based on the Code of Civil Procedure, a set of regulations was formulated in 2019 in the form of an Executive Directive, proposed by the Arbitration Board and approved by the Board of Directors of the Securities and Exchange Organization (SEO). Subsequently, a concise text titled the “Procedural Guideline of the Securities Market Act Arbitration Board” was approved by the Arbitration Board on April 21, 2024, replacing the aforementioned, relatively detailed, directive. This article, employing a descriptive-analytical methodology with a critical perspective, seeks to answer several fundamental questions. First, is the establishment of procedural regulations in the manner described (i.e., through directives and guidelines) valid and legitimate? Second, to what extent are these regulations consistent with legal principles, particularly the principles of civil procedure? And third, what are the most significant legal challenges in the procedural rules of the Arbitration Board? The findings of this research indicate that the enactment of procedural regulations in the aforementioned manner is open to criticism and its validity is questionable. The provisions of the Guideline, in certain areas—such as restricting legal representation exclusively to attorneys-at-law, the legal basis for and calculation of hearing fees, and the power to issue interim orders and attachments—exceed the scope of a mere guideline. In some instances, they are also not justifiable under established principles of due process. The representation of the SEO in filing lawsuits, the manner of rendering awards, and the process for appealing awards are among other procedural challenges at the Arbitration Board. This situation stems from a legal vacuum and practical necessities. The solution lies in legislative intervention to either enact the required regulations or, at a minimum, to explicitly affirm the applicability of the provisions of the Code of Civil Procedure.
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| Keywords: Securities Market Arbitration Board, Procedural Guideline, Arbitration, Specialized Non-Judicial Body, Professional Disputes. |
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Type of Study: Research |
Subject:
Special
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