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Article 139 of the Constitution of the I.R. of Iran in light of International Arbitral Decisions and Iran’s Reservations to Investment Treaties

Document Type : Article

Author

Associate Professor, Department of International Law, Faculty of Law, Shahid Beheshti University, Tehran, Iran; Arbitrator, Iran-United States Claims Tribunal.

Abstract

The idea of protecting the public interest by incorporating specific provisions in private contracts or in international treaties has been accepted in some legal systems. The provision of Article 139 of the Constitution of the I.R. of Iran concerning settlement or arbitration of public or State property is one such requirement. The international arbitration practice of the last forty years indicates, that except in cases where observance of Article 139 is stipulated in the contract, arbitral tribunals have been reluctant to apply its limitations. Explicit or implicit references to the necessity of observing Article 139 of the Constitution in the documents of ratification of bilateral investment treaties are a form of unilateral reservation by one party to the treaty. In the absence of stipulation as to the need for obtaining the authorization of Article 139 in the text of the treaty, the principle of respect for the integrity of the bilateral treaty is applicable. Accordingly, it is feared that the unsuccessful experience of invocation by Iranian public law entities of the objections based on Article 139 in previous international commercial arbitration cases would be repeated in the field of investment arbitration in the future.

Keywords

Main Subjects

References

  1. English

    1. Books
    2. Gaillard, E., & Savage, J. (eds) (1999). Fouchard, Gaillard, Goldman on International Commercial Arbitration.
    3. Harris, D.J., (2004). Cases and Materials on International Law. 6th edn, Sweet & Maxwell, London.
    4. Paulsson, J. (2013). The Idea of Arbitration. Oxford University Press, Oxford.
    5. Poudret, J.F., & Besson, S. (2007). Comparative Law of International Arbitration. Translated by Stephen V. Berti and Annette Ponti, Second Edition, Sweet & Maxwell, London.

     

    1. Articles
    2. Hanotiau, B. (1998). The Law applicable to the Issue of Arbitrability. 7 International Business Law Journal, 758-59.
    3. Lalive, P. (1987). Arbitration with foreign sates or state-controlled entities: some practical questions. in Julian D M Lew, Contemporary Problems in International Arbitration, Springer, 289-296,
    4. Seifi, J. (2000). New Trends – New Actors in Iranian Law Relating to Arbitration. 75 Philippine Law Journal, 47-63.
    5. Stein, Ted. L. (1984). Jurisprudence and Jurists’ Prudence: The Iranian-Forum Clause Decisions of the Iran-U.S. Claims Tribunal. 78(1) American Journal of International Law, 1-52.

     

    1. Documents
    2. Institut de Droit International (IDI), ‘Arbitration Between States, State Enterprises, or State Entities, and Foreign Enterprises’, 12 September 1989, <idi-iil.org/app/uploads/2017/06/1989_comp_01_en.pdf> accessed 1 May 2022.
    3. Iran-Armenia BIT, signed on 6 May 1995, available at: https://investmentpolicy.unctad.org/international-investment-agreements/treaties/bilateral-investment-treaties/179/armenia---iran-islamic-republic-of-bit-1995-.
    4. Iran-Yemen BIT, signed on 29 February 1996, available at: https://investmentpolicy.unctad.org/international-investment-agreements/treaties/bilateral-investment-treaties/2056/iran-islamic-republic-of---yemen-bit-1996-.
    5. Iran-Italy BIT, signed on March 10, 1999, Article 8(2), available at: https://investmentpolicy.unctad.org/international-investment-agreements/treaties/bilateral-investment-treaties/2021/iran-islamic-republic-of---italy-bit-1999-.

     

    1. Arbitral / Judicial Decisions & Documents
    2. Bankswitch Ghana (Ltd) v. Ghana, Award of 11 April 2014.
    3. Bureau Veritas, Inspection, Valuation, Assessment and Control, BIVAC BV v Paraguay, ICSID Case No ARB/07/9, Decision of the Tribunal on Objections to Jurisdiction, 29 May 2009.
    4. Defence Industries Organisation of the Ministry of Defence and Support for Armed Forces of the Islamic Republic of Iran v International Military Services Ltd, Supreme Court of the Netherlands, NJ 2006/469, Judgment, 28 January 2005, ECLI:NL:HR:2005:AR3645 (DIO v. IMS).
    5. DIO v. IMS, para 3.6.2 (cited in Bankswitch Ghana (Ltd) v. Ghana, Award of 11 April 2014.
    6. Elf Aquitaine Iran v. National Iranian Oil Company, Preliminary Award, 14 January 1982, XI Year Book of Commercial Arbitration, 1986, p. 97.
    7. Framatome v. Atomic Energy Organization of Iran, ICC Case 3986, Decision on Jurisdiction, 30 April 1982, VIII Year Book of Commercial Arbitration, 1983.
    8. Gatoil International Incorporated v National Iranian Oil Company, Court of Appeal, 1990 WL 10622722, Judgment, 22 February 1990.
    9. Gatoil International Inc v National Iranian Oil Company, Paris Court of Appeal, 17 December 1991. For an English translation, see (July 1992) 7 International Arbitration Reporter B-1, B-2.
    10. The Ministry of Defence and Support for Armed Forces of the Islamic Republic of Iran v Westinghouse Electric Corporation, ICC Case No 7375/CK, Preliminary Award, 5 June 1996.

     

    References In Persian:

    1. A) Books
    2. Salehi, M. (Editor) (2017). Principles of the Constitution in light of the views of the Guardian Council, Article 139, Guardian Council Research Institute, Number: 13960070, Tehran (In Persian).
    3. Fathi, M., & Kouhi Esfahani, K. (Editors) (2018). The Constitution of the Islamic Republic of Iran, along with the interpretive views of the Guardian Council. The Guardian Council Research Institute, Tehran (In Persian).

     

    1. B) Articles
    2. Eskinni, R. (2011). Arbitration in Iranian Law. Proceedings of the Conference on the 10th Year Establishment of an Arbitral Institution in Iranian Law. with the efforts of Mohammad Kakavand, Institute for Legal Studies and Research in Danesh, Tehran, 33-45 (In Persian).
    3. Abedi, Mohammad Taqi (2006). Judicial and arbitral jurisdictions (analysis of a decision issued on the issue of jurisdiction). Legal Journal, 35, 146-89 (In Persian).
    4. Kaviani, C. (2001). Article 139 of the Constitution and the Condition of Arbitration in Contracts Approved by the Islamic Consultative Assembly. Research on Law and Policy, 5, 130-143 (In Persian).
    5. Karimi, A., & Parto, H. R. (2012). Arbitration of Claims relating to Public and Governmental Property. Law Research Quarterly, 14(36), 157-184 (In Persian).
    6. Hindi, S. A. (2007). Reviewing the conditions of Article 139 of the Constitution on the property of State-Owned companies. Legal Journal of Justice, New Series, 61, 86-63 (In Persian).

     

    1. C) Documents
    2. Algerian Declarations Documents, Legal Journal, Issue 1, Winter 1984, Algerian Declarations Documents, pp. 231-273 (In Persian).
    3. Detailed Statement of the Negotiations of the Final Review Of the Constitution of the Islamic Republic of Iran, (December 1985), Vol. 2, Session 48, pp . 1932-1248 (In Persian).

     

    1. D) Arbitration and Judicial Verdicts
    2. Branch 12 of the Appeals Court of Tehran Province (2007), Judgment no. 221200948 (In Persian).
    3. Branch 15 of the Appeals Court of Tehran Province (2013), Judgment no. 9209970221501544 (In Persian).
    4. General Board of the Court of Administrative Justice (2012), Judgment No. 139-138 (In Persian).
    5. Advisory Opinion No. 6166/7 dated 05/11/1994 The Legal Department of the Judiciary (In Persian).
Public Law Studies Quarterly

Articles in Press, Accepted Manuscript
Available Online from 21 June 2024
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  • Receive Date: 08 June 2022
  • Revise Date: 25 June 2022
  • Accept Date: 12 July 2022
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