نوع مقاله : علمی پژوهشی
نویسندگان
1 استاد، گروه حقوق عمومی، دانشکدة حقوق و علوم سیاسی، دانشگاه تهران، تهران، ایران.
2 دانشجوی دکتری، حقوق نفت و گاز ، دانشکدة حقوق و علوم سیاسی، دانشگاه تهران، تهران، ایران.
چکیده
کلیدواژه‌ها
موضوعات
عنوان مقاله [English]
نویسندگان [English]
The term transnational law was first introduced by Philip. C. Jessup became famous in his book published in 1956 under the title "Transnational Law". In the explanation of this term, it can be said that when actions or events go beyond the national society, they create transnational phenomena and relationships that give the identity of the society and the transnational society. Therefore, transnational phenomena and relations are entities, events or situations that include more than one legal-political system (nation-country). In fact, it is accepted that the emergence of transnational rights is influenced by political, economic, cultural and social forces in one word (sociology of law). Many new subjects fall under the category of one of the recognized national or international legal systems, but according to the basic view in this article, "transnational law" is the subject of a distinct legal system that does not belong to any legal system (national or international) and is outside of The territory of state law (nation-state) is located. In this regard, lex petrolea, as a set of conventional rules of the oil industry, can be one of these subjects, but it is not defined precisely and is used in a contradictory manner and has an unclear scope. This term was officially introduced in international law through the famous dispute of AMIN Oil and Kuwait oil exploration. A review of the existing literature about the theory of lex petrolia shows that there is no theoretical consensus regarding the concepts and foundations of this theory. Regarding the nature and scope of the expansion of the legal principles claimed by the aforementioned theory, there are different views, from a limited set in the field of oil arbitrations to a comprehensive world order.
Purpose - The purpose of the discussions raised in this article is whether transnational law can be evaluated as an independent system in the context of the emergence of lex petrolia. Is such a set of propositions and procedures and legal principles, assuming proof, located along the main sources of law in the national and international legal systems or across them; if it is raised along them, it means that it does not have an independent existence by itself and its validity It is subject to approval in domestic and international legal systems. But if it is claimed to be within the main sources of law, the implication is that it can be considered as an independent source of law.
Research method- The method of this research is descriptive-analytical and with a new approach with a view to the Sociology of law and library sources and published scientific articles have been used.
Conclusion- The review of the existing literature about the lex petrolia theory shows that there is no theoretical consensus regarding the concepts and foundations of this theory. However, contrary to what some jurists claim, the theory of Lex Petrolia as a legal system independent and self-sufficient from domestic and international legal systems and with binding properties has not been realized and recognized so far. The arguments of the aforementioned jurists in this regard do not prove the elements and characteristics necessary for the realization of an independent legal system. Therefore, it is not possible to reach a conclusion in this regard with a purely legal-logical point of view, but if legal independence is to be given to Lex Petrolia as an independent and transnational resource, we must adopt a new approach based on the legal sociology method and social expectation. These legal social expectations can be justified by resorting to the independent credit basis of transnational commercial law instead of resorting to the rule of conflict resolution, that is when Lex Petrolia is understood and accepted as a type of transnational social law because this legal rule relies on It is the need of the society, not the legal system of the "nation-country". The meaning is that in order to understand the concept and basis of lex petrolia, we must search for legal rules by the method of legal sociology.
کلیدواژه‌ها [English]
منابع
الف) فارسی
ب) خارجی
3. Bishop, Doak (1998). “International Arbitration of Petroleum Disputes”. The Development of a Lex Petrolea’ 23 Yearbook of Commercial Arbitration 1131; Daintith (n 2) 5 (Accessed 2 FEB 2023).
4. Childs, Thomas (2011). “Update on Lex Petrolea: The Continuing Development of Customary Law Relating to International Oil and Gas Exploration and Production”. 4:3 J WORLD ENERGY LAW & BUSINESS, at 214. https://doi.org/10.1093/jwelb/jwr014.
5. Daintith, Terence (2017). “Against lex petrolea”. 10 Journal of World Energy Law & Business 1, 5. https://doi.org/10.1093/jwelb/jww036.
6. De Jesu´s ,Alfredo (2012). “The Prodigious Story of the Lex Petrolea and the Rhinoceros Philosophical Aspects of the Transnational Legal Order of the Petroleum Society”. 1(1) TPLI Series on Transnational Petroleum Law 23. www.lexpetrolea.org/#!publications/c1ger (Accessed 21 February 2022).
7. Charles Sampford(1988). Walker, “The Rule of Law”. Melbourne University Press 39-64. https://doi.org/10.1093/acprof:oso/9780198252986.003.0003.
8. Goldman, Bernard (1987). “The Applicable Law”. General Principles of Law: The Lex Mercatoria’ in Julian Lew (ed), Contemporary Problems in International Arbitration (Martinus Nijhoff Publishers, Netherlands, 113, 116. https://www.trans-lex.org/112400/_/the-lex-mercatoria-in:-lew-contemporary-problems-in-international-arbitration-london-1986-at-113-et-seq/.
9. Griffiths, John (2003). “The Social Working of Legal Rules”. Journal of Legal Pluralism and Unofficial Law, 35:48 page.73. for more details about The Social Working of Legal Rules and legislative effectiveness, see page 7 “A quarter of a century after having come to the depressing conclusion that the sociology of law had not produced a single interesting, general proposition about legislative effectiveness, I now conclude optimistically”. https://commission-on-legal-pluralism.com/system/commission-on-legal-pluralism/volumes/48/griffiths-art.pdf.
10. Jessup, Philip. C (1956). Transnational Law. Yale University Press, New Haven. https://dokumen.pub/transnational-law-0685897923-9780685897928.html.
11. Looper, Talus; Otillar (n 8); Martin (n 8); De Jesús O (n 8); Carmen(2013). “Otero Garciá-Castrillón, ‘Reflections on the Law Applicable to International Oil Contracts”. 6 Journal of World Energy Law and Business 129; Mary B Ayad, ‘The Vienna Convention as Authority for the Use of Precedent as Customary Practice in International Arbitrations of Oil Concessions and Investment Disputes in North Africa and the Gulf Arab States; or a Lex Mercatoria for a Lex Petrolea’ (2013) The Journal of World Investment and Trade 918.
12. Luhmann, Niklas (1985). “A Sociological Theory of Law”. (Martin Albrow tr Routledge & Kegan Paul (DOI: 10.1177/0964663906066620).
13. Mustill, Michael (1988). “The New Lex Mercatoria: The First Twenty-five Years”. 4 Arbitration International 86, 87. https://www.trans-lex.org/126900/_/mustill-michael-the-new-lex-mercatoria:-the-first-twenty-five-years-arbintl-1988-at-86-et-seq/.
14. REDFERN & HUNTER (2009). ON INTERNATIONAL ARBITRATION. Nigel Blackaby & Constantine Partasides (Oxford, 5th Edition, at paragraphs 1.113, 8.58, 9.195, and 9.212. Note that courts of first instance in some jurisdictions are not bound by decisions of higher/appellate courts.https://www.pbookshop.com/media/filetype/s/p/1450868628.pdf.
15. Sardoueinasab, Mohammad (2016). The Prospective “Right” in Transnational Law (The Right “Beyond the Sovereign State”). A Dickson Poon Transnational Law Institute, King’s College London Research Paper Series, Paper 34. http://ssrn.com/abstract=2833782.
16. Talus, Kim, Scott Looper and Steven Otillar (2012). “Lex Petrolea and the Internationalization of Petroleum Agreements: Focus on Host Government Contracts”. 5 Journal of World Energy Law & Business 189, 192 (DOI:10.1093/jwelb/jws017).
17. Timothy, Martin (2012). “Lex Petrolea in International Law”. in Ronnie King (ed), Dispute Resolution in the Energy Sector: A Practitioner’s Handbook (Globe Law and Business.108. https://timmartin.ca/wp-content/uploads/2021/12/Lex-Petrolea-in-International-Law.pdf.
18. Wolfgang G Friedmann (1957). “Corporate Power, Government by Private Groups, and the Law”. 57(4) Columbia Law Review 155 as quoted by Peer Zumbansen in: Comparative, Global Transnational Constitutionalism: The Emergence of a Transnational Legal-Pluralist Order (2011) Comparative Research in Law & Political Economy Research Paper Series No.24/2011. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1949320.
19. Zumbansen, Peer (2008). “Transnational Law”. CLPE Research Paper No. 09/2008, 743. http://digitalcommons.osgoode.yorku.ca/clpe/181?utm_
source=digitalcommons.osgoode.yorku.ca%2Fclpe%2F181&utm_medium=PDF&utm_campaign=PDFCoverPages.
20. Zumbansen, Peer (2014). “Transnational Law, Evolving”. King’s College London Law School Research Paper No 2014-29, 10. https://doi.org/10.1017/9781108780582.
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