Diseño web y programación en Málaga - Agostudio

Generalities of arrest procedure in Iran, by Dr. Hassan Amirshahi


It is noteworthy that a number of international conventions apply to arrest of ships in Iran top among which is the Brussels Convention of May 1952.Document relating to the claims arising out of the privileged rights are  stipulated under article 29 of the maritime law of Iran and other provisions of the said law. Every kind of official and commercial instrument including cheques, promissory  notes, drafts and /or contracts wherein the ship indebtedness is reflected, taking into account the preference of the privileged rights and chooses in possession over the ship (mortgage).

Considering that a ship holds juridical personality, it is possible to submit a motion to the Iranian competent courts for arresting any ship where the subject-matter o the claim has no relationship with Iran and Iranian nationals, even if the cargo is not shipped from or to Iran and the parties to the contract of sale or the charter party are not of Iranian nationality.

The Iranian courts may issue an attachment order against the properties and the vessel for the acquisition of appropriate security and agreed jurisdiction , upon the claimant’s motion to this effect.

According to the general principles of law, the Iranian courts are inclined to extend their judicial jurisdiction. However, under the special laws, as applicable to the above question, the Iranian courts, after issuance of the attachment order and arrest of the vessel, do not insist on examining the merits of the case without the claimant’s motion to this effect. However, in case of the claimant’s failure to request the court ( within 10 days from the issuance of the attachment order and the subsequent arrest of the ship ) to take cognizance of the merits of the case, the respondent may request the court to revoke the said order.

The Iranian courts do not accept a P. & 1. Club letter of guarantee as good security and their acceptance of the foreign letter of guarantees is contingent upon their issuance through the Iranian banks. The Iranian courts, a fortiori , accept cash as good security.

By virtue of the provisions of the Civil Procedure Code of Iran, if the claimant has intended to arrest a ship as a certain rem, its conversion into the letter of guarantee or cash is subject to the claimant’s consent (Art. 122 of Civil Procedure Code). But, in the event that the ship is merely arrested for the purpose of securing the claimant’s claim, the respondent may request the court to convert it into cash, letter of guarantee or any other property which in the latter case the value of the property must be equivalent to the amount of the relief sought and, further, its marketability and ease of sale must not be lower than the arrested ship. (Art.124 ibid)

By virtue of article 108, Para. d , of the Civil Procedure Code of Iran, the claimant is bound to deposit in cash the amount of damages which might be incurred by the opponent party with the Justice Administration’s Fund . However, in certain instances, such as the lawsuits which are instituted on the strength of promissory notes or bills of exchange (in case of these instruments being protested within the legal respite by their holders), and in the same manner in lawsuits which are instituted on the basis of cheques and notarial documents, the claimant is exempt from depositing the above cash counter-security . The Iranian courts usually determine an amount between 10 to 25% of the relief sought as counte-rsecurity .

In order to arrest a ship within the territorial jurisdiction of Iran, the claimant is obliged to make payment of the amount which is revised upwards annually and which represents costs of a civil law suit  on account of its plaint for the issuance of the attachment order plus a sum of IR Rls 2000 (approx. twenty cents) for each photocopy of the exhibits attached to the plaint together with an amount representing  the court’s expenses for the attachment proceeding. Also, certain other unforeseeable costs are involved including, for example, the cost on account of translation into Farsi (around USD forty per page), publication of relevant notices, expertise fees, etc. The attorney’s fees will be as per amount agreed upon by the parties (attorney and client). The Marine Marshal’s fees will be determined according to the tariff approved by the maritime law of which depends on the tonnage and power of the ship as well as the length of time the ship is under arrest.

Release procedure

Upon the claimant’s renouncement of the ship arrest and/or the cessation of the reasons of arrest, such as the court’s finding to the effect that the ship is not owned by the claimant, the court shall render an order for lifting the arrest which has to be served on the Ports and Maritime  Organization within certain days, taking into consideration the distance between the court and the harbor. Consequently, the said organization shall release the arrested ship immediately upon receiving the port charges and dues.

In principle, the Iranian courts will not insist that a vessel be kept under arrest. However, if the claimant fails to request the court to take cognizance of the merits of the case (warranting payment of court costs) within 10 days , and the respondent does not request the setting aside of the attachment order, the ship will remain under arrest pending the examination of the substance of the claim by any court. Appeals against such civil lawsuits will be taxed at 3% or 4% depending on whether they are before the courts of appeal or the Supreme Court.

Translation of documents and legalized power of attorney

By virtue of article 58 of the Civil Procedure Code of Iran “where the document is not in the Farsi language, besides the certified copies, the certified true translation thereof should also be attached to the plaint”.

Under article 34 of the Civil Procedure Code of Iran: “In the case where a power of attorney has been given outside Iran, it must be certified by one of the Iranian diplomatic agents or the Iranian consulates”. The power of attorney has to be approved by the official authorities of the claimant’s country and has to be officially translated into Farsi from its original text in order to be presented to the Iranian courts.

Arrest  processing time

Pursuant to article 115 of the Civil Procedure Code of Iran : “Where the application for attachment has been moved, the chief clerk of the court is required to present the file to the court immediately. The court shall ………….take cognizance of the evidence presented by the applicant immediately and issue an order of acceptance or rejection of the application for attachment”. In view of the above-mentioned article and taking into account the probability of submission of defective documents, the turnaround time needed to lay said security attachment depends on court congestion and completion of documents. A processing time of 7-10 business days should be allowed. It is to be noted that, in the event that the claimant is non-suited by virtue of a final judgment, the defendant has the right to file a claim, within 20 days as of the date of Service of the final judgment, for award of documented damage which it has suffered because of the said attachment order without having to pay, this time, any court cost. The claim shall be served on the other party to present its defense within ten days and the court shall meet out of docket to decide on the case which decision shall be final. In case the defendant does not move any application for damages within the specified   deadline, the counter-security shall be returned to the claimant upon moving simple application.

It is to be noted that Iranian courts are reluctant to accept  facsimile documents unless they have been legalized or the other party does not raise the issue of originals or there could, reasonably, be no originals as in correspondence exchanged between the two parties which engaged in no other means of communication. New legislation, however tends to more flexible admitting production of faxes and emails as supporting evidence .

Temporary restraining orders

By virtue of Art.316 of Iranian Civil Procedure Code, application for temporary restraining orders can be moved with courts of law either for seizure of property or for a court order preventing or commanding an action. Again counter-security is needed and in case no lawsuit has been filed, the applicant must do so within 20 days as of the date of issuance of temporary restraining orders failing which the court, upon motion by the other party, shall revoke the order. Provisions (similar to those laid down under pre-litigation attachment) exist for application for damage by the party against which a temporary restraining order has been issued and for return of courter security to the applicant for temporary restraining order in case the judgment creditor fails to sue for damages within one month as of the date of service of the final judgment.

Last but not least , Iran is signatory to a number of international conventions dealing with the question of ship arrest. However, it is basically the Brussels Convention of May1952 which  applies to  ship arrest in Iran.