A comparative study of separability of arbitration clause under main contract of LIca and the UNCITRAL model law
The aim of the paper was to investigate the independence of the arbitration clause from the main contract in the International Commercial Arbitration Law of Iran with a comparative study in the UNCITRAL model law. The effectiveness of this type of procedure, its coordination with the specific objectives and the special status of international traders has led to their increasing willingness to use this legal solution. We use a comparative method, quasi-experimental, to describe similarities and differences in variables in two or more existing groups in a natural setting; it resembles an experiment as it uses manipulation but lacks random assignment of individual subjects. This study begins analyzing international arbitration and the UNCITRAL model rules (Chapters I to VI), then reviewing the national arbitration (Chapter V); thus, the effects of the principle of independence of the arbitration clause can be seen (Chapter VII) and, later, the problems that arise (Chapters VIII to X). Even so, the main conclusion is that the parties usually agree to resolve their international disputes through arbitration, which is judged privately and universally accepted.
Emami, S. H. (1995) Civil Rights, Volume 1. Tehran: Islamiyah Publications.
Jafarian, M. & Rezaeian, M. (1998). The New Law on International Commercial Arbitration in Iran. Journal of International Arbitration, 3, pp. 31–52.
Janeidy, L. (1997). Law governing international trade judgments. Tehran: Publishing Dagestar.
Katouzin, N. (1990). Civil Law, General Rules of Contracts, Volume 3. Tehran: Behneshar Publishing House.
Movahed, M. A. (2005). Lessons from Oil Referees, 2nd ed. Tehran: Publication of the International Legal Services Office of the Islamic Republic of Iran.
Van den Berg, J. A. (ed) (2007). The Arbitration Agreement is Still Autonomous. International Arbitration 2006: Back to Basics? (ICCA Congress Series, 2006), Montreal.
Blue Limited vs. Jaribu Credit Traders Limited, High Court at Nairobi (Milimani Commercial Courts), Kenya, 25-IX-2008, Civil Suit 157 of 2008 (retrieved on http://kenyalaw.org/ 1-XII-2017).
Case 240/2007-6/2006, Court of Appeal of Madrid, Spain, 30-IV-2007.
Cecrop Co. vs. Kinetic Sciences Inc., Supreme Court of British Columbia, Canada, 9-IV-2001, BCSC 532 (CanLII), available on the Internet at http://canlii.ca/t/4xl1;
Comandate Marine Corp. vs. Pan Australia Shipping Pty. Ltd., Federal Court, Australia, 20-XII-2006,  FCAFC192.
D.G. Jewelry Inc. et al. vs. Cyberdiam Canada Ltd. et al., Ontario Superior Court of Justice, Canada, 17-IV-2002.
Fung Sang Trading Limited vs. Kai Sun Sea Products and Food Company Limited, High Court—Court of First Instance, Hong Kong, 29-X-1991.
Globe Union Industrial Corp. vs. G.A.P. Marketin Corp., Supreme Court of British Columbia, Canada, 18-XI-1994), Can LII 186 (BC SC).
Jaral Decoracion, S.L vs. Penasco Rodilla, SL, Madrid Court of Appeal, Spain, 2-II-2007, case 94/2007-07/2005.
Krutov. vs. Vancouver Hockey Club Limited, Supreme Court of British Columbia, Canada, 22-XI-1991, BC SC Canlii 2077 (BC SC) (retrieved on http://canlii.ca/t/1cr44 1-XII-2017).
NetSys Technology Group AB vs. Open Text Corp., Ontario Superior Court of Justice, Canada, 29-VII-1999, CanLII 14937 (retrieved on http://canlii.ca/t/1w8ss 1-XII-2017).
This work is licensed under a Creative Commons Attribution 4.0 International License.
Authors publishing in our Journal comply to the following terms:
1. Authors keep their work’s copyrights, but they guarantee Ius Humani Law Journal to be the first publisher of their papers. They grant the Journal will a Creative Commons Attribution License, under which their work can be shared with the condition that it is appropriately cited.
2. Authors are aware and accept that the Ius Humani Team will try to give the greatest diffusion to the Journal, which means, among other things, that its printed and electronic editions will be distributed among different databases and scientific indexes.
3. Authors can establish further clauses for non exclusive distribution, such as publication on a separate book or placing in an institutional data-base. Nevertheless, a note should be always added to explain that the paper was originally published in Ius Humani Law Journal.
4. We permit and encourage authors to share their work through Internet before and during the editorial process to receive further recommendations and wider references (we recommend you read the article The Effect of Open Access).