In the modern world, electronic communications play a significant role in national and international electronic transactions. This issue has forced all legal systems to face up to many emerging legal problems in the context of electronic communications, such as the time and the place of formation of electronic contracts, the validation of e-contracts made by the interaction with e-agents, the legal validity of electronic documents and signatures, consumer protection in contracting electronically in particular in cross-border e-transactions, and the Internet jurisdiction and choice of law. One issue to determine is the place of formation of contracts when contracting electronically, either through email, websites or chat-rooms to see how the notion of 'place' is perceivable in cyberspace; and the way of application of the four traditional theories of information, dispatch, receipt and awareness relating to the time and place of conclusion of contracts in contracting by electronic means should be examined. Regarding the legal validity of e-contracts made through interactive websites, the legal status of electronic agents which play an important role in this process is questionable to see whether they are akin to real agents in the physical world or they are only a mere tool of communication. The responsible person for any mistakes that an electronic agent makes and causes losses or damages to the contracting parties should also be examined. There are also questions regarding meeting the formalities in the formation of some specific contracts in contracting electronically to see whether the electronic documents and signatures legally valid and admissible at the courts of law or not. Their legal weight should also be measured. Moving on the jurisdiction and choice of law issue, some argumentative questions raise. For instance, where the rule of private international law provides that the competent court is the court within which jurisdiction the contract is performed, it is necessary to see that where the place of performance of the contract in which the subject matter is digital goods such as e-books or computer software delivered online is. This is also an important question in providing electronic services such as e-teaching. Regarding the choice of law issue the same questions of jurisdiction are posed. Furthermore, as consumer protection issue in B2C contracts is important in developing electronic commerce worldwide, it should be considered that whether the consumer party is able to bring an action against the business party in his own place of domicile or habitual residence or not. These are only a sample of questions that the current research tries to analyse based on the traditional legal rules and principles and the statues on electronic commerce. Discussing the above legal doubts in the context of Iranian law shows that there are a number of legal uncertainties in the Iranian legal system hindering, or at least putting in doubt, the development of electronic commerce in both national and cross-border electronic transactions. Despite the fact that some of them have been addressed by the Iranian Electronic Commerce Act 2004 indirectly, however a detailed legal work is still definitely needed to elaborate the questions and provide solutions developing and modernizing Iranian law in the context of electronic contracts. The author in the current research tries to analyse the questions by a horizontal comparative study of the UNCITRAL Model Laws, the Convention on the Use of Electronic Communications in International Contracts 2005, the EU law, English law, American law and Iranian law. Also, a four-stage roadmap that acts as the guiding principle of this research is employed to develop the Iranian legal system in the context of e-commerce. The first stage focuses on whether the exact application of Iranian traditional law can address the emerging legal doubts; the second stage expands and develops traditional rules; the third introduces legal presumptions; and the fourth theorizes new rules. The research concludes that the Iranian legal system may be modernized and developed in the context of electronic contracts by adopting the legal policy and solutions of other legal systems by both scholarly legal doctrines and legislation.
| Identifer | oai:union.ndltd.org:bl.uk/oai:ethos.bl.uk:764302 |
| Date | January 2014 |
| Creators | Habibzadeh, Taher |
| Publisher | University of Manchester |
| Source Sets | Ethos UK |
| Detected Language | English |
| Type | Electronic Thesis or Dissertation |
| Source | https://www.research.manchester.ac.uk/portal/en/theses/developing-and-modernizing-iranian-law-in-the-context-of-electronic-contractsbya-comparative-study-of-uncitral-rules-english-law-american-law-eu-law-and-iranian-law(004e86e1-83a6-42f0-9e6b-d3f6270696ad).html |
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