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Estoppel and the preclusive effects of inconsistent statements and conduct: the practice of the Iran-United States Claims Tribunal*

Published online by Cambridge University Press:  07 July 2009

J.R.G. Weeramantry
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Extract

When statements made before the Iran-United States Claims Tribunal (the ‘Tribunal’) have exhibited some degree of divergence from representations or conduct made at a different point in time, estoppel and associated concepts have often proved to be of considerable assistance in determining between the competing versions presented. This article will assess the application of the doctrine of estoppel and related concepts by the Tribunal and compare its jurisprudence with the position of such principles as accepted in international law.

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Articles
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Netherlands Yearbook of International Law , Volume 27 , December 1996 , pp. 113 - 141
Copyright
Copyright © T.M.C. Asser Press 1996

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References

1. McNair, A., ‘The Legality of the Occupation of the Ruhr’, 5 BYIL (1924) p. 17, at p. 34.Google Scholar

2. MacGibbon, I.C., ‘Estoppel in International Law’, 7 ICLQ (1958) p. 468.CrossRefGoogle Scholar

3. See Thirlway, H., ‘The Law and Procedure of the International Court of Justice 1960–1989’, 60 BYIL (1989) p. 1, at p. 29.Google Scholar

4. See Brownlie, I., Principles of Public International Law, 4th edn. (1990) p. 641Google Scholar; Bin, Cheng, General Principles of Law as Applied by International Courts and Tribunals (1953) pp. 141–149Google Scholar; Lord, McNair, The Law of Treaties (1961) p. 485Google Scholar; and MacGibbon, I.C., ‘Estoppel in International Law’, 7 ICLQ (1958) p. 468, at p. 470CrossRefGoogle Scholar. See also Phillips Petroleum Company Iran v. The Islamic Republic of Iran, et al., Award No. 425–39–2 (29 June 1989), 21 Iran-US CTR, p. 79 at pp. 154–155, paras. 197–198, where the Tribunal referred to the ‘doctrine of preclusion’ as a general principle of law which has had a long history in international arbitration, see infra, n. 26.

5. See Bowett, D.W., ‘Estoppel Before International Tribunals and its Relation to Acquiescence’, 33 BYIL (1957) p. 176Google Scholar and Martin, A., L'estoppel en droit international public (1979) p. 331Google Scholar. Lauterpacht, H., Private Law Sources and Analogies of International Law (1927) p. 204Google Scholar, wrote that ‘the principle underlying estoppel is recognized by all systems of private law …’ and even in the English common law, it has been long ago observed that ‘[t]he doctrine … is to be found … in the laws of all civilized nations …’ per Lord Campbell LC in Cairncross v. Lorimer (1861) 3 Macq. p. 827. Though Iran asserted in Phillips Petroleum, supra n. 4, p. 154, para. 195, that the doctrine of estoppel was not found in Iranian law, the existence of preclusive principles in Iranian law may be found in the Civil Code of Iran. See e.g., Art. 1275: ‘A person who admits the right of another is bound by his admission.’

6. Lauterpacht, op. cit. n. 5, p. 204. See also Rubin, A.P., ‘The International Legal Effects of Unilateral Declarations’, 71 AJIL (1977) p. 1, at p. 16CrossRefGoogle Scholar: ‘Anglo-American lawyers refer to this important area of law as the law of “estoppel”, while continental European legal systems have an analogous concept of “preclusion” or “forclusion”’, and Guggenheim, P., Traité de droit international public, vol. I, (1967) pp. 244–245Google Scholar. As noted, in Phillips Petroleum the Tribunal showed a preference towards the application of the ‘doctrine of preclusion’. See supra, n. 4.

7. Seaco, Inc. v. The Islamic Republic of Iran, et al., Award No. 531–260–2 (25 June 1992), 28 Iran-US CTR, p. 198 at p. 209, para. 34. As far as possible, citations will refer to awards or decisions reprinted in the Iran-US CTR (a privately published series) but these Reports, at the time of publication of this Yearbook, covered only those awards signed prior to 1993. Any awards issued after 1992 will be cited only by the award number and the date of filing. Copies of awards and decisions are available from the Tribunal Registry at The Hague.

8. See Bernhardt, R., ed., Encyclopedia of Public International Law, vol. VII (1984) p. 78Google Scholar. For an illustration of the divergence in the schools of thought, see the Separate Opinion of Vice-President Alfaro and the Dissenting Opinion of Sir Percy Spender in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), ICJ Rep. (1962) p. 6, at pp. 39–40 and 143–144.

9. Bowett, loc. cit. n. 5.

10. See MacGibbon, loc. cit. n. 2, pp. 469, 512. See also Schwarzenberger, G., International Law, vol. I, 3rd edn. (1957) pp. 483, 610Google Scholar; Lauterpacht, H., The Development of International Law by the International Court (1958) pp. 168–172Google Scholar; Guggenheim, op. cit. n. 6; and the Separate Opinion of Vice-President Alfaro in the Temple Case, supra, n. 8.

11. (El Salvador v. Honduras), ICJ Rep. (1990) p. 92.

12. Ibid. p. 118. See also the International Court's reference to estoppel in the North Sea Continental Shelf Cases (FRG v. Denmark, FRG v. the Netherlands), ICJ Rep. (1969) p. 3, at p. 26. On the Court's application of estoppel in the strict sense, see Sinclair, I., ‘Estoppel and Acquiescence’, in Lowe, V. and Fitzmaurice, M., eds., Fifty Years of the International Court of Justice, Essays in Honour of Sir Robert Jennings (1996) pp. 104–120.Google Scholar

13. See Bowett, loc. cit. n. 5, p. 193; Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. US), ICJ Rep. (1984) p. 246, at p. 305; and the International Law Commission commentary on the Draft Articles on the Law of Treaties, ILC Yearbook (1966) vol. II, at p. 239.

14. MacGibbon, loc. cit. n. 2, pp. 512–513.

15. Wagner, M.L., ‘Jurisdiction by Estoppel in the International Court of Justice’, Calif. LR (1986) p. 1777, at p. 1779.Google Scholar

16. Lauterpacht, H., The Development of International Law by the Permanent Court of International Justice (1934) p. 83.Google Scholar

17. Formally entitled ‘Declaration of the Government of the Democratic and Popular Republic of Algeria Concerning the Settlement of Claims by the Government of the United States of America and the Government of the Islamic Republic of Iran’, signed 19 January 1981, reprinted in 1 Iran-US CTR, p. 9. This Declaration is part of a group of agreements collectively referred to as the Algiers Accords or Algiers Declarations.

18. This provision corresponds to Art. 33, para. 1, of the Tribunal Rules of Procedure.

19. See Hanessian, G., ‘“General Principles of Law” in the Iran-U.S. Claims Tribunal’, 27 Columbia J Trans. L (1989) p. 309, at pp. 311–312Google Scholar. See also Pellonpää, M. and Caron, D.D., The UNCITRAL Arbitration Rules as Interpreted and Applied (1994) pp. 97–99.Google Scholar

20. Phillips Petroleum, supra, n. 4, p. 157, para. 202.

21. Ibid. p. 157, para. 203.

22. Ibid. p. 158, para. 204.

23. Ibid. p. 158, para. 206.

24. For a definition of the concept of acquiescence in international law see infra, n. 103.

25. Phillips Petroleum, supra, n. 4, pp. 158–159, para. 207. Similar reasons were used by the Tribunal to dismiss another counterclaim, see ibid. pp. 160–161, para. 214.

26. The Tribunal did not indicate with any precision the basis of the doctrine of preclusion, other than to state that ‘whether based upon concepts of acquiescence, estoppel, or waiver, [it] is available as a general principle of law which the Tribunal is authorized to consider …’ Ibid. p. 154, para. 197. See also n. 4 supra.

27. Award No. 298–317–1 (22 April 1987), 14 Iran-US CTR, p. 223.

28. Ibid. p. 230, para. 27. The Tribunal has also refused to permit a party to invoke the terms of a contractual provision against the other party to the contract if the former party has not itself complied with the terms of that provision. See Computer Sciences Corporation v. The Government of the Islamic Republic of Iran, et al., Award No. 221–65–1 (16 April 1986), 10 Iran-US CTR, p. 269 at pp. 286–287.

29. Sola Tiles, supra, n. 27, p. 230, para. 28.

30. Award No. 232–97–2 (2 May 1986), 11 Iran-US CTR, p. 76.

31. Ibid. pp. 100–101, para. 61.

32. DIC of Delaware, Inc., et al. v. Tehran Redevelopment Corporation, et al., Award No. 176–255–3 (26 April 1985), 8 Iran-US CTR, p. 144, at p. 161. See also infra, n. 61.

33. Award No. 55–165–1 (13 June 1983), 3 Iran-US CTR, p. 42.

34. Ibid. pp. 48–50.

35. Mobil Oil Iran Inc., et al. v. Government of the Islamic Republic of Iran, et al., Award No. 311–74/76/81/150–3 of 14 July 1987, 16 Iran-US CTR, p. 3 at p. 47, para. 139. See also the Concurring Opinion of Judge Brower at pp. 71–72, paras. 22–23.

36. Award No. 546–812–3 (2 March 1993), at paras. 26–46 (not yet reprinted in Iran-US CTR, see supra, n. 7).

37. Ibid. para. 27.

38. Golshani further asserted that if TRC's statements and the French Court's conclusions concerning the validity of the transfer effected by the deed, which were not objected to by TRC, could not form the basis of an estoppel against Iran or constitute an admission, they corroborated the authenticity of the deed. However, the Tribunal held that the authenticity of the deed was not at issue before the French Courts and that little could be deduced from their conclusions regarding the transfer of shares. Ibid. p. 22, at fn. 7.

39. Ibid. para. 40.

40. See e.g., DIC of Delaware, supra, n. 32, pp. 154–155.

41. Golshani, supra, n. 36, para. 44.

42. Ibid. para. 122.

43. Award No. 255–48–3 (19 September 1986), 12 Iran-US CTR, p. 170.

44. Ibid. p. 175, para. 16.

45. Award No. ITL 37–111-FT (6 April 1984), 5 Iran-US CTR, p. 338. The letters ‘ITL’ before an award number signifies that it is an interlocutory award and ‘FT’ indicates a decision made by the Full Tribunal (constituted by all nine Tribunal arbitrators) as opposed to a Chamber (constituted by three arbitrators). The Governments of Iran and the United States, though neither a claimant nor a respondent, were invited to participate in this interlocutory proceeding because it involved the interpretation of the Claims Settlement Declaration, supra, n. 17, to which they were signatories.

46. Ibid. pp. 346–347. In this context, see the Concurring Opinions of the United States Arbitrators in Case No. A18, United States of America v. Islamic Republic of Iran, (6 April 1984) 5 Iran-US CTR, p. 251 at pp. 267–269, 271. In the Concurring and Dissenting Opinion of Judge Mosk in American Bell International, Inc. v. Islamic Republic of Iran, et al., Award No. ITL 41–48–3 (31 May 1984), 6 Iran-US CTR, p. 74 at p. 103 reference is made to another case before the Tribunal in which a statement by Iran was inconsistent with its position in the case at hand. Judge Mosk made no comment on the effect of such an inconsistent statement but simply used it in support of his argument.

47. ISS, supra, n. 45, p. 353. As to Art. 31 of the Vienna Convention, see also text at n. 50 infra.

48. Award No. 30–16–3 (18 March 1983), 2 Iran-US CTR, p. 141.

49. Ibid. p. 144.

50. Compare this interpretation of Art. 31 of the Vienna Convention with the view of Judge Lagergren in ISS, see text at n. 47 supra.

51. RayGo Wagner, supra, n. 48, p. 149. See also Judge Mosk's references to estoppel in Oil Field of Texas, Inc. v. The Government of the Islamic Republic of Iran, et al., Award No. JTL 10–43-FT (7–8 December 1982), 1 Iran-US CTR, p. 347 at pp. 375–376; American International Group, Inc., et al. v. The Islamic Republic of Iran, et al., Award No. 93–2–3 (19 December 1983), 4 Iran-US CTR, p. 96 at p. 113; and American Housing International Inc. v. Housing Cooperative Society of Officers of State General Gendarmerie, et al., Award No. 117–199–3 (17 March 1984), 5 Iran-US CTR, p. 235 at pp. 247–248.

52. On this issue see also TCSB, Inc. v. Iran, infra n. 112.

53. Award No. 301–286–1 (22 April 1987), 14 Iran-US CTR, p. 263.

54. Ibid. p. 269, para. 23.

55. Award No. 474–268–1 (14 March 1990), 24 Iran-US CTR, p. 203.

56. Ibid. p. 218, paras. 43–44.

57. See Rouhollah Karubian v. The Government of the Islamic Republic of Iran, Award No. 569–419–2 (6 March 1996), paras. 148, 161 (not yet reprinted in Iran-US CTR, see supra, n. 7).

58. Idem.

59. Ibid. at paras. 150–153.

60. Award No. 423–10645–1 (3 June 1989), 22 Iran-US CTR, p. 111.

61. Ibid. p. 115, para. 18. See also supra, n. 32.

62. Award No. 51–41–3 (8 June 1983), 2 Iran-US CTR, p. 391.

63. Ibid. p. 397. See also R.N. Pomeroy, et al. v. The Government of the Islamic Republic of Iran, Award No. 50–40–3 (8 June 1983), 2 Iran-US CTR, p. 372 at p. 380.

64. Award No. 46–57–2 (25 May 1983), 2 Iran-US CTR, p. 334.

65. Ibid. p. 339.

66. Award No. 310–56–3 (14 July 1987), 15 Iran-US CTR, p. 189.

67. Ibid. p. 281, para. 308.

68. Ibid. para. 309; see also p. 282, para. 312.

69. Ibid. p. 280, para. 304 and pp. 281–282, paras. 307–313.

70. Award No. 548–367–2 (28 June 1993) (not yet reprinted in Iran-US CTR, see supra, n. 7).

71. Ibid. para. 37.

72. Award No. 238–158–1 (20 June 1986), 11 Iran-US CTR, p. 223.

73. Ibid. p. 229, para. 22.

74. Ibid. p. 236, para. 45.

75. Award No. 420–443–3 (22 December 1988), 22 Iran-US CTR, p. 3.

76. Ibid. pp. 53–54, para. 193. See also other instances of the use of preclusive principles in this award at paras. 207, 279, 284 and 295.

77. See also Woodward-Clyde Consultants v. The Government of the Islamic Republic of Iran, et al., Award No. 73–67–3 (2 September 1983), 3 Iran-US CTR, p. 239 at pp. 246–247.

78. Award No. 260–18–1 (11 October 1986), 13 Iran-US CTR, p. 3.

79. Ibid, at p. 33.

80. Award No. 375–381–1 (6 July 1988), 19 Iran-US CTR, p. 107.

81. Ibid. p. 122, para. 47.

82. Award No. 506–380–2 (18 February 1991), 26 Iran-US CTR, p. 60.

83. Ibid. p. 115, paras. 199–201.

84. Pomeroy Corp., supra, n. 62, pp. 398–399 and RN Pomeroy, supra, n. 63, p. 381.

85. Award No. 528–941–3 (6 March 1992), 28 Iran-US CTR, p. 53.

86. Ibid. pp. 95–96, paras. 128–129. See also infra, n. 105.

87. Supra, n. 66.

88. Signed on 15 August 1955, entered into force, 16 June 1957, 284 UNTS p. 93, TIAS No. 3853, 8 UST p. 900.

89. The status of the Treaty of Amity had been examined by the International Court of Justice in United States Diplomatic and Consular Staff in Tehran (United States v. Iran), Judgment of 24 May 1980, ICJ Rep. (1980) p. 3, at pp. 8 and 28. The Court held that the Treaty was in force at least as of 29 November 1979, the date the United States submitted its dispute to the Court. Iran, though declining to appear before the Court to present its arguments, made known its position in two communications to the Court. The communications objected to the jurisdiction of the Court, but failed to suggest that the Treaty of Amity was not in force on 29 November 1979.

90. Amoco, supra, n. 66, pp. 218–219, para. 99.

91. (Australia v. France), Interim Protection, Order of 22 June 1973, ICJ Rep. (1973) p. 99.

92. Amoco, supra, n. 66, pp. 218–219, paras. 99–100.

93. Supra, n. 4.

94. Supra, n. 75.

95. Ibid. p. 83, para. 320.

96. Houston Contracting Company v. National Iranian Oil Company, et al., Award No. 378–173–3 (22 July 1988), 20 Iran-US CTR, p. 3 at p. 24–25, para. 73.

97. John Carl Wamecke & Associates v. Bank Mellat, Award No. 72–124–3 (2 September 1983), 3 Iran-US CTR, p. 256 at p. 261; McLaughlin Enterprises, Ltd. v. The Government of the Islamic Republic of Iran, et al., Award No. 253–289–1 (16 September 1986), 12 Iran-US CTR, p. 146 at pp. 150–151, para. 16.

98. Rexnord Inc. v. The Islamic Republic of Iran, et al., Award No. 21–132–3 (10 January 1983), 2 Iran-US CTR, p. 6 at p. 12; Dames and Moore v. The Islamic Republic of Iran, et al., Award No. 97–54–3 (20 December 1983), 4 Iran-US CTR, p. 212 at p. 221; and Bechtel, Inc., et al. v. The Government of the Islamic Republic of Iran, et al., Award No. 294–181–1 (4 March 1987), 14 Iran-US CTR, p. 149 at p. 160, para. 43, p. 163, paras. 55–56; Houston Contracting, supra, n. 96, pp. 24–25, para. 73. See also Harza, supra, n. 30, at pp. 100–101, para. 61.

99. General Dynamics Corporation, et al. v. The Islamic Republic of Iran, et al., Award No. 123–283–3 (13 April 1984), 5 Iran-US CTR, p. 386 at pp. 394–395.

100. Harnischfeger Corporation v. Ministry of Roads and Transportation, et al., Award No. 144–180–3 (13 July 1984), 7 Iran-US CTR, p. 90 at p. 103.

101. Reliance Group, Incorporated v. Oil Service Company of Iran, etal., Award No. 315–115–3 (10 September 1987), 16 Iran-US CTR, p. 257 at pp. 265–266, para. 33.

102. Ammann & Whitney v. Ministry of Housing and Urban Development (Khuzestan Department of Housing and Urban Development), Award No. 248–198–1 (22 August 1986), 12 Iran-US CTR, p. 94 at p. 104.

103. MacGibbon, I.C., ‘The Scope of Acquiescence in International Law’, 31 BYIL (1954) p. 143.Google Scholar

104. Ibid. See also Thirlway, loc. cit. n. 3.

105. See Henry Morris v. The Government of the Islamic Republic of Iran, et al., Award No. 36–200–1 (11 April 1983), 2 Iran-US CTR, p. 241 at p. 244; Howard Needles Tammen & Bergendoff v. The Government of the Islamic Republic of Iran, et al., Award No. 244–68–2 (8 August 1986), 11 Iran-US CTR, p. 302 at p. 331, para. 107; Onesco, Inc. v. National Iranian Gas Company, et al., Award No. 254–263–2 (18 September 1986), 12 Iran-US CTR, p. 160 at p. 167, para. 21; Phillips Petroleum, supra, n. 4, 21 Iran-US CTR at p. 156, para. 199; Collins Systems International, Inc. v. The Navy of the Islamic Republic of Iran, Award No. 526–431–2 (20 January 1992), 28 Iran-US CTR, p. 21 at pp. 39–40, para. 59. The waiver of a party's right to object to non-compliance with the Tribunal's Rules of Procedure is provided for in Art. 30 of those Rules.

106. In addition to the awards referred to in this section, see also the exceptions derived from the Golshani award, supra, section 3.2.2.

107. Award No. 59–220–2 (27 July 1983), 3 Iran-US CTR, p. 110.

108. Ibid. p. 115.

109. Award No. 142–100–3 (13 July 1984), 7 Iran-US CTR, p. 36.

110. Ibid. p. 47.

111. Idem.

112. Award No. ITL 5–140-FT (5 November 1982), 1 Iran-US CTR, p. 261. For similar cases, see also section 3.2.3 supra.

113. Ibid. p. 266. Art. II, para. 1, of the CSD excluded from the jurisdiction of the Tribunal disputes over contracts which contained forum clauses ‘specifically providing that any disputes thereunder shall be within the sole jurisdiction of the competent Iranian courts …’ Thus in TCSB the Full Tribunal was called upon to decide whether a provision in a contract in dispute fell within that forum clause exclusion.

114. McNair, op. cit. n. 4, quoted in Bowett, loc. cit. n. 5, at pp. 195–196.

115. TCSB, supra, n. 111, p. 318, fn. 17.

116. Award No. 255–48–3 (19 September 1986), 12 Iran-US CTR, p. 170.

117. Ibid. pp. 208–209, para. 128, quoting American Bell, Award No. ITL 41–48–3 (31 May 1984), 6 Iran-US CTR, p. 74 at p. 94.

118. Ibid. p. 211, para. 137.

119. See generally Hanessian, loc. cit. n. 19.

120. Woodward-Clyde Consultants, supra, n. 77 at pp. 248–249.

121. See Bowett, loc. cit. n. 5, pp. 195–197.

122. ICJ Rep. (1962), p. 63.

123. See e.g., Amoco, supra, n. 66.

124. See supra, section 3.7.