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Analyzing the Relationship Between the Legal Functions of the "Notary Public" and Alternative Dispute Resolution (ADR) Mechanisms, with an Emphasis on "Arbitration
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Khadijeh Rezaeian *   |
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Abstract: (3 Views) |
In the current era, the ever-increasing proliferation of contracts—particularly commercial agreements—combined with ambiguous contractual language and the unequal bargaining power of the parties, has prompted legal systems to move away from judicial intervention in dispute resolution in favor of upholding the principle of "party autonomy"; this has led to the adoption of various alternative dispute resolution methods to replace traditional courts and the expansion of the scope of such mechanisms;Among these methods is arbitration, which is recognized as the most important and deeply rooted quasi-judicial legal method for resolving commercial disputes. On the other hand, the "stabilization" and "safeguarding" of property rights and the establishment of order in transactions—recognized as fundamental rights of citizens—have always been among the duties of governments; historically, this function has been delegated to the institution of the notary public. Among the various legal functions expected of this institution—which holds an independent, impartial status and enjoys public trust—the roles of decriminalization, systematizing the registration-judicial framework, strengthening legal certainty, and regulating transactions most clearly illustrate its emergence as a private forum for dispute resolution. In examining the potential to leverage the capacities of the notary public institution for the purpose of diverting cases from the judicial system, the findings of this article—derived from a descriptive-analytical study of the concepts, foundations, and backgrounds of the institutions of notaries public and arbitration, as well as their interrelationship within the Iranian legal system—indicate that First: The institution of the notary public—aimed at protecting "individual rights and public interests" and "overseeing and regulating the will of individuals in the realization of legal acts" through the "creation" or "substantiation" of such acts—shares significant functional and purposive commonalities with alternative dispute resolution mechanisms, particularly the institution of arbitration, as a non-governmental authority. Secondly: Having established a logical connection between the institution of the notary public and that of arbitration—regarding their functions, effects, dimensions, and capacities within the non-state dispute resolution system—it is proposed that the notary public, acting as an informed and impartial third party, serve as a specialized arbitration body, an arbitral tribunal, or an appointing authority for arbitrators (whether by operation of law or by mutual agreement of the disputing parties). Furthermore, it is suggested that provisions for such roles be incorporated alongside arbitration clauses in contracts or corporate bylaws, and that the provision of legal counsel and arbitration services be recognized as part of the notary public's professional competencies.
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| Keywords: Arbitration, private dispute resolution body, notary office, justice of the peace, decriminalization/depenalization, judicial alternatives. |
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Type of Study: Research |
Subject:
Special
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