تحلیل نقش اصل تنجیز و استقلال در اجرای ضمانت‌نامه‌های بانکی (مطالعه موردی: نظام حقوق ایران)

مدینه  جمالی; غلامحسین افراس; محمد  افراس

Authors

Madineh Jamali Phd Student, Department of Private Law, Bu.C, Islamic Azad University, Bushehr, Iran Author https://orcid.org/0009-0005-1884-2200
Gholamhossein Afras Department of Private Law, Bu.C., Islamic Azad University, Bushehr, Iran https://orcid.org/0009-0007-9422-3414
Mohammad Afras Department of Private Law, Dash.C, Islamic Azad University, Bushehr, Iran, Author https://orcid.org/0009-0005-9073-5936

Keywords:

International Standards, Iranian Legal System, Principle of Irrevocability, Principle of Independence, Bank Guarantee

Abstract

Bank guarantees, as key instruments in commercial transactions and construction projects, play an important role in securing obligations and reducing financial risks. This study aims to analyze the role of the principles of independence and unconditionality in improving the enforcement of bank guarantees within the Iranian legal system. The principal research question is: How can the principles of independence and unconditionality enhance the efficiency and transparency of bank guarantees in Iran? The research hypothesis is based on the premise that alignment with international standards, the development of digital technologies, and the reform of judicial practices can strengthen these principles and mitigate existing challenges, including sanctions and inconsistencies in judicial practice. The study employs a descriptive-analytical method and examines the issues through an analysis of judicial practices, actual cases, and a comparative assessment of advanced legal systems. The findings indicate that the principle of independence, by restricting examination to the documents presented, prevents interference with the underlying contract and reduces legal disputes, as illustrated by a case in Tehran in 2024–2025 in which the execution period was reduced to 48 hours. The principle of unconditionality likewise enhances transparency and the speed of enforcement by emphasizing unconditional terms, as demonstrated by an export guarantee issued in 2024–2025 that strengthened the confidence of the foreign beneficiary. Modern technologies, such as blockchain and artificial intelligence, reinforce these principles and reduce costs; however, the absence of legislation governing digital processes and inconsistencies in judicial practice constitute serious obstacles. The study concludes that legal reforms, judicial training, and the development of digital infrastructure can improve the efficiency of bank guarantees and strengthen Iran’s position in international trade.

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References

Ansari, M. (2014). Economic Analysis of Contract Law (2nd ed.). Javidaneh Jangal.

Asgharzadeh, A. (2016). The Nature of Issuance and Signature of Commercial Instruments.

Bagheri, M., & Ebrahimpour Asanjan, A. (2017). An Analysis of the Relationship between Assumption of Liability/Indemnification Clauses and Their Transfer to the Insurer. Private Law Studies, 47(4).

Ghahremani, M. (2021). Legal Developments Governing International Bank Guarantees with Emphasis on the Uniform Rules for Demand Guarantees and Their Effects in Iranian Law. Private Law Quarterly(114).

Hatamipour, M., & Nosrati, N. (2021). Judicial Practice of the Courts of Tehran Province: Commercial Instruments. Ashkan Publications.

Iranpour, F. (2019). Applied Foundations of the Economic Analysis of Private Law (1st ed.). Donya-ye Eqtesad Publications.

Jafari Langroudi, M. J. (2016). Expanded Legal Terminology. Ganj Danesh.

Kashizadeh, H. (2019). A Comparative Study of the Obligations of the Beneficiary and the Applicant of a Letter of Credit toward Each Other under the Uniform Customs and Practice for Documentary Credits and Article 5 of the U.S. Uniform Commercial Code. Legal Journal of the Office of International Legal Services, 26(40), 30-45.

Khandani, V., Amerinia, M. B., & Karimi, G. (2018). Judicial Independence in Iranian and English Law. Iranian and International Comparative Legal Research, 11(41).

Mafi, H. (2020). Effects Governing Bank Guarantees. Scientific-Research Quarterly of Jurisprudence and History of Civilization(48).

Mafi, H., & Fallah, M. (2016). An Analysis of Wrongful Demand and the Possibility of Preventing It in Demand Guarantees. Private Law Research Quarterly(3).

Saghri, M. (2015). Commercial Law: Instruments. Enteshar Joint Stock Company.

Schmitthoff, C. M. (2024). International Trade Law (3rd ed.). SAMT.

Shahbazinia, M. (2024). Transfer and Pledge of Independent Bank Guarantees. Modarres Humanities, 11(2), 107-126.

Shiravi, A. (2023). International Trade Law (5th ed.). SAMT.

Sobhaninia, A., & Kariminia, M. M. (2019). A Jurisprudential Inquiry into Bank Guarantees. Islamic Law, 16(62).

Soltani, M. (2024). Banking Law (1st ed.). Mizan Publishing.

Tangestani, M. G. (2021). Report of the Scholarly Meeting on the Proper Invocation of Legal Principles in Judicial Proceedings.

Vizheh, M. (2011). Legal Security as a Condition for the Realization of Judicial Security. Rahbord, 20(58).