چکیده:
The word 'Kodkhodmaneshi' has roots in the Persian language and literature and has been common in the popular culture of the people of Iran since ancient times as a method for resolving disputes, and it has also been used in some statutory laws. Despite its use in the realm of 'dispute resolution methods,' this word has not been defined by the legislator, its characteristics and conditions have not been explained, and it lacks codified and independent rules and a legal regime, and consequently, it does not possess the characteristics of a legal institution. The application of this word by the legislator in the Cooperation Sector Law of the Islamic Republic of Iran and the International Commercial Arbitration Law requires recognizing and defining its literal meaning, nature, and comparing it with the 'institution of arbitration' and 'equity' so that the legislator's intention and its concept in popular and legal literature, as a method for resolving disputes, can be identified and studied. Recognizing the concept and the procedure for resolving disputes through Kodkhodmaneshi and distinguishing it from the institution of arbitration is important during the time of consensus and drafting contracts, as well as during the interpretation of the content of the arbitration clause. Consenting to 'dispute resolution through Kodkhodmaneshi' or under the titles of 'arbitration based on Kodkhodmaneshi' and 'arbitration based on equity' has different meanings and effects; in this article, while studying the etymology of the word Kodkhodmaneshi, its position and concept in domestic law and international arbitration rules are studied and compared.
خلاصه ماشینی:
The Nature of Customary Kadkhodamanashi and its Difference from the Institution of Arbitration and Equity From the Perspective of International Commercial Arbitration Rules Omid Rashidi 1, Eisa Amini *2, Rabi'a Eskini 3 Abstract The word "Kadkhodamanashi" has roots in the Persian language and literature and has been common in the popular culture of the people of Iran since ancient times as a method for resolving disputes, and it has also been used in some statutory laws.
The use of this word by the legislator in the Law of the Economic Cooperation Sector of the Islamic Republic of Iran and the International Commercial Arbitration Law requires recognizing and defining its linguistic meaning, nature, and comparing it with "the institution of arbitration" and "equity," so that the legislator's intention and its concept in popular and legal literature, as a method for resolving disputes, can be identified and studied.
Of course, some legal scholars have considered "equity and justice" and "amiable compositeur" to be synonymous, as it is said in French law that these two institutions are synonymous, while others among legal scholars have distinguished between these two methods of dispute resolution (Sammaratano, 2002: 471); however, taking into account their characteristics and history of independent application in the codified rules of international commercial arbitration, and considering the concept and historical and customary background of the use of these terms, a distinction must be made between them.
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