Iran Legal, Trade, Tax, Business & Financial Experts: Tehran

Iranian Legal System

Iranian Penal Code, modified, in the post-revolution years to incorporate Islamic Lex Talionis as well as rules on admissible evidence and to provide harsher and more severe punishments in matters regarding sumptuary law (including drug-related offenses which are, now, cognizable by revolutionary courts) and, to a lesser degree, Iranian Criminal Procedure Code (the former one was very much inspired by the Code d'instruction criminelle of Napoleonic Codes) as well as Iranian Civil Procedure Code underwent fundamental changes in the wake of the 1979 revolution to bring them more in line with teachings of Islam although the newly introduced penal code does incorporate many modern notions such as suspended sentences, release on parole etc. and it does continue to apply the rule of Lex loci delicti. However, recently the former "Parquet and Juges d'instruction", once frowned upon and stigmatized in the initial restructuring period which followed the revolution as being remnants of Napoleonic Code, have been reintroduced, mutatis mutandis , and the overwhelmingly assertive tendency is to favor emergence of specialized courts to replace the so-called public courts of general jurisdiction. Thus, setting up tribunals to deal with various offenses and breaches of rules in such wide-ranging areas as cyberspace, e-commerce, sports etc. is on the agenda.

At the same time, a new ambitious Commercial Code, conceptualized to meet requirements in the event of admission of the country to WTO, is being drafted and is expected to be soon presented to the Majlis (Consultative Assembly). The new legislation, which governs new development in such fields as e-commerce, intellectual property rights, customs clearance facilitation etc., is intended to replace the now-largely outdated Commercial Law whose writers were predominantly inspired by the then-Belgian, Swiss and French Code de Commerce

However, the 1930's Civil Code-which, despite some antiquarian relics and archaic provisions on such matters as hire of animals, an overwhelming majority of jurists consider as a magnum opus because of the eloquence of its wording, coherence and integrated aspect and the fact that it adopts modern notions of Western laws(on civil status, residence, nationality, rights of the family, argumentation in proof of the claim), while' at the same time, it sticks to Sharia (more precisely, fiqh of duodecimal Shiite Moslems) in such area of nominate and innominate contracts as well as obligations and their discharge or otherwise termination, affiliation, marriage, divorce, inheritance etc., is expected to remain largely intact although it has undergone some minor amendments in its provisions pertaining to the rules of evidence.

As to the procedure involved, civil litigation is initiated by submission of a petition to the court of the judicial complex (and each judicial complex encapsulates quite a few courts) within whose geographical jurisdiction lies the domicile of the defendant. Regarding ex contractu litigation, the forum which is competent to hear the case is the one within whose jurisdiction the litigious agreement is expected to be performed.

At the instance of the Iranian party, the foreign plaintiff is required to provide a cautio judicatum solvi (security for cost and eventual penalty). However, requirement to provide such security is dropped in the case of negotiable instruments such as bills of exchange, promissory notes, checks etc. Furthermore, should the Iranian party be under no obligation to provide such security in the country of the foreign national involved, the foreign party shall be accorded exemption from such requirement.

As to the duration and taxation of costs, the cause list (court calendar) is usually extremely busy (although some hearings are held out of docket) to the point that it is safe to say that one should not have any illusion to have the court take the matter under actual advisement in less than two to six months from the date at which initiation of the proceeding is recorded or service of the first process is effected. Notwithstanding the firm's policy to seek trial-setting preference, special setting is almost non-existent on Iranian courts' calendar except in rare cases. Although interlocutory judgements and awards, provisional injunctions and remedies, cease and desist orders and in some other cases for summary adjudication (at the request of the movant) may be obtained in shorter periods, it is generally believed that a final, conclusive and re-litigation barring and precluding judgement (Iran applies the principle of collateral estoppel or res judicata which it has borrowed from the French law principle of Chose Judgee to the point that motions for reopening of trials can be only made in extremely restricted and well defined circumstances) may take two to six years or even longer. The costs are, roughly, 2%, 3% and 4% of the original amount for which relief is sought respectively at the courts of first instance, before appellate courts and the Supreme Court.

Appeals can be lodged (sometimes one step further to the supreme reviewing body i.e. the Supreme Court) within twenty days from the date of service of the judgement passed by the court of first instance (# County Court). For those domiciled outside the country, this deadline is, presently, two months.

As a rule of reciprocity, Iranian law stipulates that civil judgements rendered by foreign courts are recognized and enforced in Iran sub modo i.e. subject to conditions laid down in the respective laws, if, as per laws or treaties, civil judgements by Iranian Courts are also recognized and enforced in those countries.

A general feature of the present Iranian legal system is that it increasingly tends to favor exhaustion of all ADR means notably by arbitration (sometimes obligatory as in family disputes which risk to lead to divorce and, anyway, before issuance of any certificate of incompatibility and friction of temper) and its is also widely promoted by Iranian Chamber of Commerce for settlement of foreign trade disputes before the courts can take cognizance. In fact, all parties being sui juris i.e. having the legal capacity to litigate (i.e. not suffering from any incapacity or interdiction) are free to refer their dispute to arbitration, even before it is taken to court, and to agree on the nomination of arbitrators. Should the arbitrators respect their terms of reference and be careful not to act ultra vires, their arbitral award can be enforced through Civil Judgments Enforcement Department which has the power to act as if the decision was made by a court of law (levying distress, distraint, attachment of earnings, garnishee order etc.).

Should the party to the contract be a foreign physical person or legal entity, arbitration procedure shall follow provisions of Iranian International Commerce Arbitration Law which deals with a wide range of activities such as investment, technical cooperation, agencies, contracting etc. The law of arbitration, venue and language in which arbitral hearing are to be conducted can be agreed upon by virtue of an arbitration agreement.

Although, the Iranian Civil Code devotes hundreds of pages to nominate contracts (such as lease, sale, barter, hire, profit-sharing partnership, agency etc.), it leaves the door open to other in nominate contracts on the proviso that they are not in breach of laws: "Private contracts shall be binding on those who have signed them, provided that they are not contrary to the explicit provisions of a law" (id. Art. 10). Such flexibility does leave room for relatively modern borrowings (such as timesharing) to be justified therein and adapted thereto.

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