درخت حوزه‌های تخصصی

The International Court of Justice (ICJ) often faces criticism for allegedly exceeding its mandateby engaging in what some perceive as lawmaking. This debate, though not new, continues tospark significant scholarly discourse and is even echoed by some of its own judges. Althoughthe ICJ consistently denies having a lawmaking function, its practices demonstrate its role in thedevelopment of international law. This raises the question: How can the Court contribute to thedevelopment of international law, particularly in addressing gaps, if it lacks formal lawmakingcapacities? Are the criticisms of the Court exceeding its mandate valid? Existing literatureoften conflates ‘judicial legislation’ with ‘lawmaking’, creating a bottleneck in reasoning whichcausing scholars to necessarily conclude that the ICJ inevitably exceeds its judiciary mandate andengages in creating new laws. However, understanding the ICJ’s role in developing internationallaw and addressing gaps, despite its statutory limitations, requires distinguishing between ‘judicial legislation’ and ‘lawmaking’. While the latter involves creating new laws, ‘judiciallegislation’ refers to a method of interpretation for adapting existing laws and establishing newlegal relationships to address emerging legal requirements. This article goes further to identifywhich types of interpretation are most effective for such judicial legislation. By examining theapproaches of the UN International Law Commission (ILC), the article highlights ‘evolutiveinterpretation’ as a particularly suitable method. Evolutive interpretation enables the Court torejuvenate existing laws, clarify ambiguities, and develop legal frameworks for unregulatedissues – all while staying within its adjudicative-only mandate and avoiding lawmaking.

Drug counterfeiting causes global health corruption and hinders the achievement of the Millennium Development Goals and the right to the highest attainable level of standards of health, under Article 12 of the International Covenant on Economic, Social and Cultural Rights. In General Comment No. 14 of the Covenant, access to essential medicines is described as a human right. Although blockchain technology provides a safe and transparent method to track drugs along the supply chain to prevent counterfeiting, the results indicate that this technology has some ambiguities in terms of structure and functionality regarding compliance with existing legal regulations, namely, limitations regarding its implementation. A question can be raised in this matter, and that is, what are the effective factors in solving the existing legal gaps in relation to the laws of the digital space and blockchain? It seems that the governance of the blockchain in the decision-making process and regulation of laws are effective in how the blockchain network works. 

The principle of confidentiality is one of the most significant principles governing arbitration.In fact, the confidentiality of arbitration is a crucial positive attribute distinguishing it fromjudicial proceedings conducted in courts. According to this principle, access to documentsand information generated during the arbitration process is limited exclusively to individualswho require such access for the purpose of arbitration, thereby preventing third parties fromaccessing this information. Furthermore, there are essential issues within an arbitration processthat must fall under the provisions related to the principle of confidentiality. These issues includethe arbitration agreement, witness testimony and expert opinions, trade secrets, minutes ofmeetings, consultations, and the arbitral award. On the other hand, a breach of the principle ofconfidentiality concerning any of these subjects may lead to the imposition of legal liabilities (both civil and criminal) on the violators of the principle, including arbitrators, parties to thearbitration, and third parties. This research examines the confidentiality of arbitration withininternational rules and Iranian law, the issues covered by the principle of confidentiality inarbitration, and the persons obligated to adhere to this principle during the arbitration process.