The Principle of Judicial Independence within the Arbitration Board of the Securities Exchange of the Islamic Republic of Iran
Subject Areas : Civil LawAli Jamalzadeh 1 , Mehdi Haghighatju 2
1 - PhD Student in Private Law, Department of Law, Faculty of Law, University of Science and Culture, Tehran, Iran
2 - Assistant Professor of Private Law, Department of Law, Faculty of Humanities, Rasht Branch, Islamic Azad University, Rasht, Iran.
Keywords: Securities Exchange Arbitration Board, judicial independence, fair trial, Securities Market Law, quasi-judicial bodies, dispute resolution, disciplinary oversight of judges,
Abstract :
Compliance with the principle of independence is one of the manifestations of fair trial in any legal proceeding. In the present research, independence within the Arbitration Board of the Iran Securities and Exchange Organization has been investigated and analyzed. Pursuant to Articles 36 and 37 of the Securities Market Law, this board is considered a form of arbitration proceeding, tasked with resolving the financial disputes of the persons specified in Article 36 of the Securities Market Law. The method of appointing the members of this board and the nature of its proceedings is dualistic: one member is selected from experienced judiciary judges appointed by the Head of the Judiciary, while the other members are appointed from among economic and financial experts upon the recommendation of the Securities and Exchange Organization and the approval of the Supreme Council of the Securities and Exchange. Due to the Council's affiliation with the executive branch, the full independence of the board is called into question; specifically, the provision of the board's budget through the Securities and Exchange Organization (Note 4 of Article 37) and the establishment of the secretariat within the organization have created doubts regarding the independence of this authority. Conversely, the absence of comprehensive oversight and explicit legislation to guarantee the independence of the members and the board has made it impossible to observe the criteria of judicial independence in this institution. However, according to the legislator's explicit provision in Article 37 of the Securities Market Law regarding the appointment of an experienced judiciary judge as the head of this board, it can be argued that since the head of the board is considered a judge, the legal gaps in the Securities Market Law and the arbitration proceedings regulations can be partially addressed by utilizing existing enforcement mechanisms and the law governing the supervision of judges' performance. It is worth noting that, in any case, the characterization of this authority as an arbitration body itself reduces the degree of the board's independence. Nevertheless, this research aims to resolve legal ambiguities and gaps through provided suggestions, alongside examining the nature of this authority and its level of independence. The proposed suggestions are as follows: providing an independent budget under the supervision of the Judiciary, amending the title of the authority and the method of appointing the presiding judge to follow the recruitment process of judiciary judges, relocating the secretariat to the court office, and drafting a comprehensive and effective supervisory regulation.
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