Iran-United States Claims Tribunal Research Articles

Property Rights in Treaty Cases: Lessons for Investor-State Arbitration from Case A15 (II:A) of the Iran-United States Claims Tribunal

On 10 March 2020, the Iran-United States Claims Tribunal (IUSCT) rendered its partial award No. 604-A15 (II:A)/A26 (IV)/B43-FT in Case No. A15 (II:A), ordering the United States to pay Iran over USD 29 million in damages, including decades of interest, and to return several properties that had been frozen during the 1979 hostage crisis. In deciding which properties had to be transferred by the United States to Iran, the Tribunal – having concluded that there are no public international law rules on property – struggled to identify the law applicable to property rights in the context of an inter-state arbitration based on a treaty. While the majority applied international private law principles to determine the domestic law applicable to questions of ownership, several of the dissenting arbitrators expressed the view that the nature of the dispute, as a treaty case, required the exclusive application of public international law. These two diverging approaches offer an interesting perspective on recent investor-state decisions, which also present conflicting views on the role that should be attributed to domestic law in determining the contours of those property rights, which are the subject of treaty violations and the corresponding compensation of investors. property, international law, public international law, private international law, domestic law, applicable law, Iran-US Claims Tribunal, investor-state dispute settlement, investor-state arbitration, choice of law

A review of the Iran-United States Claims Tribunal

This article is intended to analyse the Iran-United States Claims Tribunal by considering its origins and decisions in order to find out to what extend it has been successful in the settlement of international commercial and inter-state disputes between Iran and the United States. The Tribunal work is evaluated to determine whether it has been a workable pattern of Western-style legal institution for further instances of politically changed circumstances. In its arguments and expositions, I will discuss whether the Tribunal is an international arbitral tribunal created to resolve private law disputes or an interstate arbitration body typically established by treaty. I will argue that the Tribunal should be considered as an instrument of public international law, because it is based on an international treaty between sovereign states. Through this study I will examine the question of the Tribunal’s jurisdiction and its application of international law as compared with the decisions of other international tribunals. It also considers an internal question to the theory of the governing law to the resolution of disputes.

Judge Skubiszewski at the Iran-United States Claims Tribunal

The article presents the contribution of Professor Skubiszewski to the work of the Iran-United States Claims Tribunal during the period of his presidency (1994–2010). The article discusses the cases of Iran-United States Claims Tribunal decided during that period (dual-nationality cases, intergovernmental disputes and military contract cases) and the challenges which Professor Skubiszewski had to confront. Also considered are the more general problems encountered, such as unexpected extended existence of the Tribunal and its slow pace of work. In conclusion some general comments are drawn on the contribution of Professor Skubiszewski to the trajectory of the Tribunal, and on the future of the Tribunal itself.

The Latest Award from the Iran–United States Claims Tribunal: The Line Between Approximation of Damages and Ruling ex Aequo et Bono

The Iran–United States Claims Tribunal (Tribunal) has functioned in the Hague since 1981. To date, the Tribunal has completed its work in over thirty-nine hundred cases, making it one of the most significant claims settlement efforts in history. Remaining on the Tribunal’s docket are several very large and complex claims between the Islamic Republic of Iran and the United States of America.

The Jurisdictional Immunity of International Organizations in the Netherlands and the View from Strasbourg

International organizations are regularly sued before the Dutch courts. This should come as no surprise, since the Netherlands hosts no fewer than 33 of such organizations. While major cases date back to the landmark judgment in the Spaans v. Iran-United States Claims Tribunal case, the recent case of Stichting Mothers of Srebrenica et al. v. United Nations brought to the fore important unresolved issues which relate to the perceived conflicting obligations of states. On the one hand, States must accord immunity to international organizations; on the other, they must provide claimants with access to justice. Complicating circumstances in the Srebrenica case were the operation of the priority rule under Article 103 of the United Nations Charter, and the lack of alternative remedies against the United Nations. This paper highlights these unresolved issues, and considers how the courts interpret and apply the ‘functional immunity’ test. It then examines how to resolve the perceived tension between the obligations of states to accord immunity and to grant access to justice.

Questioning the Role of International Arbitration in the Fight against Corruption

International arbitration does not represent a promising mechanism for the adjudication of corruption in the context of international business transactions, although parties appear to be raising allegations of corruption with increasing frequency in arbitration proceedings. This article surveys over fifty arbitral awards, spanning many decades, and rendered by tribunals of the International Centre for Settlement of Investment Disputes and the International Chamber of Commerce, tribunals applying the arbitral rules of the United Nations Commission on International Trade Law and the Iran-United States Claims Tribunal. On the basis of this survey, the article argues that arbitral tribunals have made an unsatisfactory contribution to the adjudication of corruption allegations partly due to avoidance techniques employed by both tribunals and parties, as well as some questionable reasoning on the part of arbitral tribunals. Most significantly, however, tribunals have faced major evidentiary problems because parties have tended to provide inadequate evidentiary support for corruption allegations. Tribunals could pursue five potential solutions to these evidentiary problems, namely drawing adverse inferences, placing greater reliance on circumstantial evidence, lowering the standard of proof, shifting the burden of proof, and drawing on factual findings in domestic proceedings. Finally, this article concludes by arguing that arbitral tribunals are also ill-suited to the adjudication of such claims because the public interest in the adjudication of corruption allegations is at odds with the relatively closed, non-transparent character of arbitration.

Shifting the Burden of Proof in the Practice of the Iran–United States Claims Tribunal

When an adjudication body is called upon to resolve a dispute, its function is to weigh the adduced evidence and decide whether a claim has been made out on that evidence or not. The adjudication body will come to a conclusion from the evidence that has been presented, and in some cases from evidence which has not been presented, but which would have been expected to be forthcoming. International tribunals, such as the Iran-United States Claims Tribunal (IUSCT), may also draw adverse inferences from the silence of a party in circumstances where such silence is inconsistent with the position taken by that party in the arbitration. This article briefly discusses issues such as the burden of proof, who must shoulder the burden of proof, and an alternative allocation for burden of proof in the practice of the international adjudication bodies (mainly the Tribunal itself ).

Alla Weiner. « The Iran-United States Claims Tribunal: What lies ahead? ». Law and Practice of International Courts and Tribunals: A Practitioners' Journal, Vol. 6, N° 1, 2007, pp. 89-96.

Le 25e anniversaire du tribunal Iran / Etats-Unis demontre la necessite d’avoir etabli une telle structure pour regler les differents entre des citoyens des deux pays. Loin d’avoir termine sa mission, le tribunal a encore beaucoup de cas a voir. Une autre raison pour cette longevite est la lenteur des deux gouvernements concernes, a reagir et remettre les documents necessaires pour juger les cas. Les relations tendues entre l’Iran et les Etats-Unis ne facilitent pas le processus : en effet, l...

The Necessity for Discovery of Evidence in the Fact-Finding Process of International Tribunals

One of the key aspects of national and international arbitrations is the manner in which evidence is gathered and presented to the arbitral tribunal or panel. The collaboration of parties in these matters can shape the outcome of almost every dispute. However, the approach of international courts and tribunals such as the Iran-United States Claims Tribunal (IUSCT) toward the concept of presenting and producing evidence is subject to many issues, for example, the rules of evidence, applicable law, the arbitrators’ legal background, the inherent power of courts and tribunals and the principle of fair trial. Truly, no aspect of international arbitration has caused as much friction as the issue of discovery. The scope of discovery available to parties varies, and is often a delicate issue in international disputes as parties from different legal backgrounds frequently have very different expectations as to how the evidence-gathering process should be conducted. In brief, this article does not promote the notion that liberal discovery is a fundamental right, rather it focuses on developing a model that treats cost effectiveness as a fundamental issue which should be examined when drafting procedural rules.

The Iran-United States Claims Tribunal: What Lies Ahead?

AbstractThe Iran-United States Tribunal has recently celebrated its 25th anniversary. Although it has resolved all of the cases brought by private claimants, it is still likely to be many more years before the Tribunal is able to complete the remaining government-to-government cases on its docket. There are multiple reasons why so much time will be required: the pending cases are extremely complex, the governments brief them slowly, and the Tribunal's decision-making process itself is slow. There does not for the foreseeable future appear to be an alternative to continued litigation, because the prospects of a global settlement of the remaining claims before the Tribunal are remote. The parties face challenges in developing reasonable assessments of the legal and economic costs and benefits of settlement. Beyond this, the strained political relations between the United States and Iran would make even a legally and economically rationale settlement extremely difficult to achieve. The challenge facing the Tribunal in the remaining years of its existence, in which the Iran and United States are the only parties before it, is to continue to decide cases in a principled fashion on the basis of the law and the facts, and to resist the temptation to reach compromise decisions in the interests of political expediency.

The Doctrine of Indirect Expropriation in Light of the Practice of the Iran-United States Claims Tribunal

The Doctrine of Indirect Expropriation in Light of the Practice of the Iran-United States Claims Tribunal

Challenges of Arbitrators at the Iran-United States Claims Tribunal—Defining the Role of the Appointing Authority

Challenges of Arbitrators at the Iran-United States Claims Tribunal—<i>Defining the Role of the Appointing Authority</i>

Iran-United States Claims Tribunal Precedent in Investor-State Arbitration

The article examines the jurisprudential value of Tribunal decisions and awards from both theoretical and empirical perspectives. The article considers four factors for assessing the precedential value of awards and decisions of international tribunals: (i) the integrity and authoritative standing of the court or tribunal issuing the earlier decision; (ii) the similarity of the relevant facts in the two cases, (iii) the similarity of the law relied on as necessary to making the decision (the decisional law); and (iv) the merits or instructive value of the prior tribunal's reasoning in reaching its decision - hence, its exposition of the law. Applying these factors to the jurisprudence of the Iran-U.S. Claims Tribunal demonstrates the importance of that jurisprudence as persuasive authority in investor-State arbitration. Part I of the article examines the extent to which Tribunal precedent has been cited by parties and tribunals in investor-State arbitrations. The citation analysis finds significant citation of Tribunal precedent in awards and decisions in arbitrations administered by the International Centre for Investment Disputes (ICSID), and in party submissions in arbitrations under Chapter 11 of the North American Free Trade Agreement. Thus, the awards and decisions of the Iran-U.S. Claims Tribunal have been and likely will continue to be an important source of authority in investor-State arbitration.

Investor-State Arbitrator Disqualified for Pre-Appointment Statements on Challenged Measures

FEW ISSUES are as important in the practice of international arbitration as the circumstances that disqualify an arbitrator from serving in that capacity. Yet guidance on this critical issue is exceedingly general. Published decisions on challenges to arbitrators are almost as rare as unicorns – the notable exceptions being the handful of decisions of the appointing authority for the Iran-United States Claims Tribunal and the even fewer published decisions by members of tribunals or annulment committees established under the ICSID Convention.1 The reasons for this lack of published guidance are twofold. First, international commercial arbitrations have traditionally been private. The private nature of the proceedings has led to a general hesitation on the part of participants to publish information concerning them. Secondly, challenges often focus on the conduct or relationships of highly respected international arbitrators. Participants often likely avoid publication of information concerning challenges on grounds of discretion. Neither of these reasons fully justifies the dearth of published information on this important subject. The first of these concerns – maintaining the privacy of commercial arbitration proceedings – presents more of a logistical issue than a substantive one. It is not difficult to describe the parties and the subject of an arbitration in terms sufficiently general to preserve the privacy of the proceedings where desirable, and yet to provide sufficient detail to make clear the pertinent issues and their resolution. The Yearbook of International Commercial Arbitration has admirably proved this point year after year. And in an increasing number of arbitrations, such as those under the NAFTA's investment chapter, the expectation that the proceedings will be private does not hold. The second concern – that publication will damage the reputations of respected international arbitrators – is overdone. Challenges are rarely based on conduct or relationships of arbitrators that call into …

Compromise and Cooperation at the Iran-United States Claims Tribunal

If one day the Hague Court were to decide to continue its work under US pressure and without Iran's presence, that day the United States would face our decisive and revolutionary response by every possible means. After all its disgraceful defeat and failure in Iran, the United States should have learned that the Islamic Republic is prepared to go as far as necessary in order to obtain its rights. It is really surprising that the United States has forgotten the episode of the occupation of the nest of spies so soon and forces the Hague Court to play dangerous games.[1][1] It seems at times that there is no connection between the great political world and the Tribunal claims. We hear about the political rhetoric, but for commercial reasons Iran still wants to settle some of the claims. In some cases they need spare parts for machines that they want to get running again. A lot of goods and services also are provided to Iran by foreign affiliates and subsidiaries of US companies.[2][2] [1]: #fn-1 [2]: #fn-2

The Iran-United States Claims Tribunal and the Process of International Claims Resolution. Edited by David D. Caron and John R. Crook. Ardsley NY: Transnational Publishers, 2000. Pp. xiii, 509. Index. $125.

The Iran-United States Claims Tribunal and the Process of International Claims Resolution. Edited by David D. Caron and John R. Crook. Ardsley NY: Transnational Publishers, 2000. Pp. xiii, 509. Index. $125. - Volume 97 Issue 1

The Contribution of the Iran-United States Claims Tribunal to the Development of the Doctrine of Indirect Expropriation

The Contribution of the Iran-United States Claims Tribunal to the Development of the Doctrine of Indirect Expropriation

Luncheon Talk: The Iran-United States Claims Tribunal and Disputes Involving Sovereigns

ARBITRATING with sovereigns is the subject of this year's workshop of the Institute for Transnational Arbitration of the South Western Legal Foundation. What is a sovereign? According to Black's Law Dictionary it is: ‘1. A person, body or State vested with independent and supreme authority. 2. The ruler of an independent State.’ If a sovereign is a ruler of a State, I must confess that as a Swiss citizen I have no personal experience, as we do not have and never have had a Head of State. According to the Swiss Constitution, the power lies with the people and even our government of seven members does not have the same president for more than one year and this is on a rotating basis. Switzerland therefore does not make State visits to other countries, which I guess is good for the Swiss taxpayer. If the sovereign is a natural person, I must admit that Switzerland has a very difficult attitude with such persons. One does not have to go back to Wilhelm Tell, who was supposed to have shot the representative of the Duke of Austria near the Lake of Lucerne and thereby triggered Swiss independence some 710 years ago. What is probably less well known, however, is that Switzerland, in the second part of the nineteenth century, was a famous place of asylum for foreign political refugees and anarchists. Among the better known was, of course, Richard Wagner, who had fled Germany after having participated in the 1848 uprising in Dresden and then had an affair in Zurich – we will never know how far it went! – with Mathilde Wesendonk, which gave him the inspiration for Tristan and Isolde . Obviously one of the most famous, or infamous figures, was Vladimir Ilich Ulyanov, better known as Lenin, who in …

Islamic Law and the Iran-United States Claims Tribunal: The Primacy of International Law over Municipal Law

THE PROPHET Muhammad acted as arbitrator for the Muslims in the beginning of Islam.1 The Prophet also recognized arbitration by appointing an arbitrator, accepting that arbitrator's decision, and counselling a tribe to use arbitration to resolve a dispute.2 The Qur'an expressly addresses arbitration with regard to family matters, and requires that Muslims use arbitration to resolve such disputes.3 The Rashidin Caliphs who immediately succeeded the Prophet in leading the Muslims applied these arbitration principles to disputes arising out of commercial transactions.4 Many leading Islamic scholars have promoted arbitration in similar matters over the centuries.5 Today, most, if not all Middle Eastern countries have legislation favourable to arbitration in resolving international trade disputes.6 Despite this long history and doctrinal nexus between Islam and arbitration, many contemporary Muslims are wary of international arbitration.7 One potential reason for this scepticism is the disastrous application of international arbitration to the political dispute that split the Islamic world into Sunni and Shi'ite.8 The perceived reluctance of tribunals to rely on Islamic law, or Shari'a, is another.9 Critics who subscribe to this latter reasoning demand greater incorporation of Islamic law into arbitration proceedings.10 This Note responds to these demands by analysing the ways in which the Iran-United States Claims Tribunal (‘the Tribunal’) relies on Islamic law, and by exploring the limitations upon the Tribunal, and other tribunals, in relying on Islamic law to a greater extent.11 This Note is divided into four sections. Section I describes each instance where the Tribunal explicitly mentions Islamic law in a decision or dissenting opinion. Section II draws parallels between Islamic and Tribunal jurisprudence. Section III explains how several Islamic countries have constitutionalized Islamic law, thus making it their municipal law.12 It is this constitutionalization that hinders greater …

An Old Judge Remembers

Gunnar Lagergren has performed many notable functions in the course of the twentieth century, most of which resulted in significant contributions to international law and, in particular, to the settlement of international disputes. As an arbitrator, he handled a number of important cases, including that between India and Pakistan concerning the Rann of Kutch and the Taba boundary arbitration between Egypt and Israel. He served with distinction on a number of important tribunals, including the European Court of Human Rights at Strasbourg and the Iran-United States Claims Tribunal at The Hague, where he was its first President.