چکیده:
One of the advantages of arbitration, in addition to eliminating formalities, is flexibility in handling the substance of the dispute. The arbitrator can base their proceedings on fairness with the authority obtained from the parties and judge in an amicable manner. This is an important authority that is not common in judicial authorities, but the arbitrator can use it well and issue a fair verdict. Identifying this authority is also crucial, as the parties and supervising judicial authorities must know on what basis and rules the arbitrator reached the desired result? The common spirit of these types of arbitration, which are introduced under various titles, is to avoid the strict and rigid rules of law and to take refuge in flexible criteria to adjust the conditions of the parties. However, this criterion itself is ambiguous, and therefore it is appropriate to make it controllable and understandable by adopting a comparative approach to this arbitration, paying attention to judicial procedures and legal thoughts. The subject of the present article is to identify the aforementioned arbitration and related concepts.
خلاصه ماشینی:
١. Common Law System Despite its familiarity with the concept of fairness, the common law system has not had a positive approach to arbitrations outside the rules, such as amicable arbitration (Bruder & Hilgard, 2014: 52)١, and in this system, foreign judgments issued based on it were not enforceable for a long time (Weinberg, 1994: 236).
The concept of “fairness-based arbitration” is not the same as “fairness,” which is a judicial concept, because fairness in the meaning of English law is a collection of regulations, criteria, views, and principles that have gradually emerged and are applied in disputes, while the aforementioned arbitration is not a collection of regulations and criteria, but a responsibility delegated to the arbitrator to achieve fairness and justice (Elisa & Hilgard, 2014: 52).
In England, after the enactment of the 1996 Act (the meaning of subsection (b) of paragraph (1) of Article 46), a way was opened to approve the desired arbitration; According to this section: If the parties agree, the dispute can be resolved based on what they have accepted (including fairness or trade customs) or the arbitration reference determines.
3. Canonical Law. Currently, according to Article 1478 of the country's Civil Procedure Code (revised in 2011): “The arbitration authority resolves the dispute in accordance with legal rules, unless the parties have entrusted it with the task of resolving it in a conciliatory manner” (Mohseni, 1394: 327).
cit), but in fairness-based arbitration, the dispute is resolved not on the basis of law but with regard to ethical principles and principles of fairness, therefore, mandatory regulations can also be modified; however, in both cases, international public order is observed (40: 2006, Uhle).
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