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The weighing of evidence in a dual national case at the Iran-United States Claims Tribunal*: A case comment (Nazari and the Government of the Islamic Republic of Iran [Iran-United States Claims Tribunal, Award No. 559-221-1, 24 August 1994])

Published online by Cambridge University Press:  07 July 2009

D.S. Mathias
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Extract

Cases brought against the Islamic Republic of Iran by dual nationals of Iran and the United States constitute the principal work of the Iran-United States Claims Tribunal in the mid-1990s. While the first decade of the Tribunal's work was devoted primarily to the arbitration of claims of US corporations against Iran and Iranian entities, most of the corporate claims had been decided or settled by the end of 1992. At that time, the second phase of the Tribunal's work, dominated by its consideration of claims of dual nationals, began.

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Articles
Information
Netherlands Yearbook of International Law , Volume 26 , December 1995 , pp. 171 - 189
Copyright
Copyright © T.M.C. Asser Press 1995

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References

1. In 1993, seven often contested awards related to claims brought by dual nationals; in 1994, all six contested awards related to such cases. The delay, in relative terms, in the Tribunal's consideration of most of the dual national claims is attributable, as a general matter, to the fact that all proceedings in such cases were suspended while the Full Tribunal considered Iran's challenge to the jurisdiction of the Tribunal in such cases in Case A/18. See Islamic Republic of Iran and United States of America, Case A/18, Decision (6 April 1984), reprinted in 5 Iran-US CTR p. 251.

2. Award No. 559–222-1, Iran-United States Claims Tribunal (24 August 1994) (Chamber One) at para. 1, to be reprinted in Iran-US CTR (not yet published). All facts are taken from the Award. In its interlocutory award of 15 January 1991, Chamber One had determined that Mr. Nazari's dominant and effective nationality during the relevant period had been the United States. Interlocutory Award No. ITL 79–221 (15 January 1991), reprinted at 26 Iran-US CTR p. 7.

3. Award at paras. 139–140. Judge Holtzmann wrote a Separate Opinion, dissenting in part and concurring in part. Separate Opinion (24 August 1994).

4. See, e.g., with respect to the first claim, Award at para. 48; with respect to the third claim, Award at para. 80; with respect to the fifth claim, Award at para. 50.

5. See, e.g., with respect to the first claim, Award at paras. 100–104; with respect to the third claim, Award at paras. 135–137; with respect to the fifth claim, Award at paras. 105–106.

6. Separate Opinion at p. 1. The author has omitted from this discussion several issues relating to the third claim that, insofar as can be determined from the Award, did not play a role in the Tribunal's analysis of the claim.

7. The allegations in this paragraph are taken from the Award at paras. 69–70.

8. Ibid., para. 71.

9. Idem.

10. Ibid., paras. 72 and 89.

11. Ibid., para. 76.

12. Ibid., para. 77.

13. Ibid., para. 80.

14. Idem.

15. Idem.

16. Ibid., para. 80 at fn. 7.

17. Ibid., para. 82.

18. Ibid., para. 82 at fn. 8.

19. Ibid., para. 86.

20. Ibid., para. 88.

21. Ibid., paras. 88–89.

22. Ibid., para. 90.

23. Ibid., para. 135.

24. Idem.

25. Idem.

26. Ibid., para. 135 at fn. 11.

27. Ibid., para. 136.

28. Ibid., para. 137.

29. The Chamber apparently regarded the alternative claim as foreclosed by its discussion in fn. 11 of the Award. See text at n. 26.

30. Ibid., para. 138.

31. Art. 24(1) of the Final Tribunal Rules of Procedure states: ‘Each party shall have the burden of proving the facts relied on to support his claim or defense.’ The Final Tribunal Rules are reprinted at 2 Iran-US CTR p. 405. The UNCITRAL Rules are reprinted there as well. For discussions of the Tribunal's experience with the UNCITRAL Rules, including Art. 24, see van Hof, J.J., Commentary on the UNCITRAL Arbitration Rules: The Application by the Iran-US Claims Tribunal (1991)Google Scholar and Baker, S.A. and Davis, M.D., The UNCITRAL Arbitration Rules in Practice: The Experience of the Iran-United States Claims Tribunal (1992).Google Scholar

32. See Van Hof, op. cit. n. 31, at p. 160; see also Sandifer, D.V., Evidence Before International Tribunals (1975) p. 127.Google Scholar

33. See generally Sandifer, op. cit. n. 32, at pp. 95–174, van Hof, op. cit. n. 31, at pp. 160–163, Baker and Davis, op. cit. n. 31, at pp. 109–111. See also Lillich, R.B., Fact-Finding Before International Tribunals (Eleventh Sokol Colloquium) (1991).Google Scholar

34. See ICJ Rep. (1949) p. 18; see also Sir Fitzmaurice, G., The Law and Procedure of the International Court of Justice (1986) p. 128.Google Scholar

35. ICJ Rep. (1949) p. 119.

36. General Claims Commission, United States and Mexico (Commission Under The Convention Concluded September 8, 1923, Between the United States and Mexico), Opinion and Decision in The United States of America on Behalf of William A. Parker, Claimant, v. The United Mexican States, Docket No. 127 (31 March 1926), at paras. 6–7.

37. Ibid., at para. 9. The Commission requested that the Agents produce additional evidence with respect to the ownership of the claim. The final decision with respect to the Parker claim is found in the Opinion rendered by the Commission on 26 October 1926.

38. Sandifer, op. cit. 32, at p. 131.

39. See Holtzmann, H., ‘Fact-finding by the Iran-United States Claims Tribunal’Google Scholar, in Lillich, op. cit. n. 33. See also van Hof, op. cit. n. 31, at pp. 160–163; Baker and Davis, op. cit. n. 31, at pp. 109–111.

40. Award No. 438–430-1 (5 September 1989) at para. 141, reprinted in 23 Iran-US CTR p. 150.

41. Award No. 375–381-1 (6 July 1988) at para. 133, reprinted in 19 Iran-US CTR p. 107.

42. Award No. 426–276-3 (30 June 1989) at para. 42, reprinted in 22 Iran-US CTR p. 170. Other cases in which the Tribunal made adverse inferences include INA Corporation v. Iran, Award No. 184–161-1 (12 August 1985), reprinted in 8 Iran-US CTR p. 373, and SEDCO, Inc. v. Iran, Award No. 309–129-3 (2 July 1987) at para. 91, reprinted in 15 Iran-US CTR p. 23.

43. Award No. 549–967-2 (6 July 1993) at para. 49, to be reprinted in Iran-US CTR (not yet published).

44. See text at n. 15 supra.

45. See text at n. 25 supra.

46. See text at n. 16 supra.

47. White, J.T. and Summers, R.S., Handbook of the Law Under the Uniform Commercial Code (1980) pp. 680–683.Google Scholar

48. Idem.

49. It appears from the Award that Iran did not contest the fact that Iranian banks were nationalized pursuant to this law.

50. Award No. 528–941-3 (6 March 1992) at para. 67, to be reprinted in Iran-US CTR (not yet published).

51. Sandifer, op. cit. n. 32, atp. 22; quoted in Ultrasystems. Inc. and Islamic Republic of Iran et al., Partial Award No. 27–84-3 (4 March 1983) (Concurring Opinion of Richard M. Mosk at 2), reprinted in 2 Iran-US CTR p. 100.

52. Sandifer, op. cit. n. 32, at p. 22.

53. See text at n. 19 supra.

54. Award at para. 85.

55. See text at n. 22 supra.

56. Award at para. 125.

57. Separate Opinion of Judge H.M. Holtzmann, at p. 7.