The Iran-United States Claims Tribunal.
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Place / Publishing House: | Boston : : BRILL,, 1998. ©1998. |
Year of Publication: | 1998 |
Edition: | 1st ed. |
Language: | English |
Physical Description: | 1 online resource (953 pages) |
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Table of Contents:
- Intro
- Title Page
- Copyright Page
- Dedication
- About the Authors
- Note on the Form of Citation of Tribunal Cases
- Table of Contents
- Preface
- Acknowledgments
- PART I THE ESTABLISHMENT OF THE IRAN-UNITED STATES CLAIMS TRIBUNAL
- Chapter 1: The Genesis, Structure, Organization and Nature of the Tribunal
- A. The Genesis of the Tribunal: The Iranian Revolution and the Hostage Crises
- B. The Structure and Organization of the Tribunal
- C. The Nature of the Tribunal
- D. The Tribunal Rules: Modification of the UNCITRAL Rules
- E. The Formative Early Decisions of the Tribunal
- F. The Early Challenges that Confronted the Tribunal
- Chapter 2: The Jurisdiction of the Tribunal
- A. Nationals of Iran and the United States
- 1. Choice of Law For Determining Nationality
- 2. Natural Persons
- 3. Dual Nationals
- 4. Corporations
- a. Proof of Place of Organization
- b. Proof of Share Ownership
- 5. Non-Stock Corporations
- 6. Partnerships
- 7. Application of the Dominant and Effective Nationality Test to Juridical Persons
- B. Limitations on Claims of Nationals
- 1. Subject Matter Jurisdiction
- 2. Forum Selection Clauses
- 3. Claims Relating to the Hostages and to Popular Movements of the Islamic Revolution
- 4. Continuous Nationality
- a. The Basic Requirement
- b. Assignment of Claims
- 5. Claims Not "Outstanding" on 19 January 1981
- 6. Claims Filed After 19 January 1982
- C. Limitations on Proper Respondents
- 1. Government Control Over Respondent Entities
- 2. Corresponding Exclusion of Claims Against Nationals
- D. Other Classes of Claims
- 1. Counterclaims
- 2. Interpretative Disputes ("A" claims)
- 3. Intergovernmental Claims ("B" claims)
- 4. Indirect Claims
- a. Indirect Ownership
- b. Beneficial Ownership of Claims
- 5. Small versus Large Claims.
- E. Jurisdiction over Awards on Agreed Terms
- PART II CONTRIBUTIONS OF THE IRAN-UNITED STATES CLAIMS TRIBUNAL TO INTERNATIONAL ARBITRATION
- Chapter 3: Arbitrators - Panel Composition and Failure to Act
- A. Designation of Chamber Composition by the President
- B. Limited Substitution of Members
- 1. Tribunal Rules
- 2. General Grounds for Member Substitution
- 3. Substitution Following the Successful Challenge of an Arbitrator in a Particular Case
- 4. Substitution Due to Temporary Absences
- 5. Disqualification
- 6. Ad Hoc Substitution Arrangements
- 7. The Use of a Special Chamber
- C. Replacement of Arbitrators
- 1. Resignation - Procedure for Transition
- a. Mechanism for Submitting Resignation
- b. Participation Following Resignation - The Mosk Rule
- (1) The Mosk Rule and its General Application
- (2) How Application of the Mosk Rule is Determined
- (3) Impact of the Mosk Rule
- 2. Replacement Upon Agreement to a Challenge of an Arbitrator in his General Capacity or Upon Withdrawal Following Such a General Challenge
- D. Conclusions
- Chapter 4: The Appointing Authority and Challenges
- A. Selection of the Appointing Authority
- B. Functions of the Appointing Authority
- 1. Appointment of Members
- 2. Designation of the President
- 3. Ruling on Challenges
- a. The Exclusive Power of the Appointing Authority
- b. Specific Challenges
- (1) Iran's Challenge of Judge Mangård
- (2) The United States' Challenge of Judges Kashani and Shafeiei
- (3) Iran's Challenge of Judge Briner in Amoco Iran Oil Company
- (4) Iran's and the National Iranian Oil Company's Challenge of President Briner Following the Award in Phillips Petroleum Company Iran
- (5) Iran's Third Challenge of President Briner
- (6) Claimant's Challenge of Judge Noori in Roy P.M. Carlson
- (7) Iran's Challenge of Judge Arangio-Ruiz
- C. Conclusions.
- Chapter 5: Evidentiary Considerations
- A. Evidentiary Standards
- 1. Interested Party Testimony
- 2. Preference for Documentary Evidence
- 3. Affidavit Evidence
- 4. Oral Testimony
- 5. Adverse Inferences
- 6. Need for Rules of Evidence
- B. Tribunal-Appointed Experts
- C. Unauthorized and Late-Filed Documents
- 1. The Character and Contents of the Submission
- 2. The Length and Cause of the Delay
- Chapter 6: Interim Measures of Protection
- A. Legal Bases for Interim Protection
- B. Requirements for Granting Interim Protection
- 1. Prima Facie Jurisdiction
- 2. The Urgency of the Request
- a. Ordinary Provisional Measures
- b. Temporary Restraining Measures
- 3. Irreparable Prejudice/Irreparable Harm
- 4. Protecting the Tribunal's Jurisdiction - Stays of Proceedings in Other Fora
- 5. New Facts and Changed Circumstances
- 6. The Full Tribunal's Denial of Iran's Request in Cases Nos. A15(IV) and A24
- C. Compliance and Enforcement
- Chapter 7: Reconsideration and Reopening of Awards
- A. Post-Award Procedures Under the Tribunal Rules
- B. The Issue of Inherent Authority to Reopen and Reconsider Awards
- 1. The Decision in Dames and Moore
- 2. The Award in Gordon Williams
- 3. The Awards in Phillips Petroleum Company Iran and Case No. A25
- 4. The Decision in Gloria J. Cherafat
- 5. The Decision in Ram Industries
- C. Conclusions
- PART III CONTRIBUTIONS OF THE IRAN-UNITED STATES CLAIMS TRIBUNAL TO PUBLIC INTERNATIONAL LAW
- Chapter 8: Treaty Interpretation
- A. Restrictive Interpretation
- B. The Parties' Intent and the Object and Purpose of the Treaty
- C. Additional Interpretative Sources
- D. Conclusions
- Chapter 9: Claims of Dual Nationals
- A. Adoption of the Dominant and Effective Nationality Test
- B. Meaning of the Caveat: The Relevance of Dual Nationality to the Merits of a Claim.
- 1. Concurring Opinions in Case No. A18
- 2. Tribunal Practice and Precedent
- 3. Toward the Future: Arguments of the Parties
- a. Relevant Iranian Law
- b. Estoppel
- c. Bad Faith or Unclean Hands
- d. Abuse of Rights
- e. Lack of Notice
- C. Conclusions
- Chapter 10: Exchange Controls
- A. Rights and Obligations Under the Treaty of Amity and the Fund Agreement
- 1. Exchange Restrictions in the Treaty of Amity
- 2. Fund Agreement
- B. Iranian Currency Exchange Regulations
- C. The Approach of the Tribunal
- 1. Issues Collateral to the Validity of the Exchange Regulations
- 2. The Validity of the Iranian Currency Regulations Under the Fund Agreement and the Treaty of Amity
- D. Conclusions
- Chapter 11: Wrongful Expulsion
- A. Factual Background
- B. Preliminary Issues: Procedure, Jurisdiction and Choice of Law
- 1. Procedure
- 2. Jurisdiction
- 3. Choice of Law
- C. Substantive Issues
- D. Conclusions
- PART IV THE CONTRIBUTIONS OF THE IRAN-UNITED STATES CLAIMS TRIBUNAL TO THE CONCEPTS OF LIABILITY AND COMPENSATION IN TAKINGS DOCTRINE
- Chapter 12: Actions Engaging State Responsibility for Expropriation and Other Measures Affecting Property Rights
- A. The Common Historical Background to American Taking Claims Against Iran Arising Out of the Islamic Revolution
- B. Actions Engaging State Responsibility for Expropriation and Measures Affecting Property Rights
- 1. What Constitutes Property Rights
- 2. Determining Whether a Taking has Occurred
- a. Formal Expropriations
- b. De facto Takings
- 3. Acts Constituting a Taking
- a. Seizure and Retention of Tangible Property
- b. Bank Accounts
- c. Businesses
- (1) Government Appointment of Temporary Managers
- (2) In the Absence of Government-Appointed Managers
- (3) Loss of Income
- (4) Interference with Contract Rights
- (5) Unjust Enrichment and Quantum Meruit.
- C. Determination of the Date of the Taking
- 1. De Jure Takings
- 2. De Facto Takings
- D. Conclusions
- Chapter 13: Responsibility of a Government for Takings
- A. Attributability
- 1. Acts of a Government and its Political Subdivisions
- 2. Exercises of State Authority
- 3. Acts of Controlled Entities
- 4. Acts of Revolutionary Movements
- B. Causation
- C. Defenses to State Responsibility
- 1. Use of Police Power
- 2. Force Majeure
- Chapter 14: The Standard of Compensation
- A. Range of Remedies
- B. Standard of Compensation
- 1. Applicable Law
- a. Customary International Law and the Treaty of Amity
- b. The Standard Applicable to Dual Nationals
- 2. Lawfulness of the Taking
- a. Public Purpose and Non-Discrimination
- b. Prompt Payment
- c. Pacta sunt servanda and Stabilization Clauses
- d. Compliance with Municipal Law
- e. Lawfulness and the Treaty of Amity
- f. Lawfulness and the Quantum of Compensation
- C. The Tribunal's Application of the Standard of Compensation
- 1. The Standard Under the Treaty of Amity
- 2. The Standard Under Customary International Law
- a. Expropriations of Discrete Property Interests
- b. Large-Scale Nationalizations
- D. Chamber Three's Award in Shahin Shaine Ebrahimi (Cases Nos. 44/46/47)
- E. Conclusions
- Chapter 15: Deriving a Quantum of Compensation from the Standard of Compensation
- A. "Fair Market Value" as the "Full Equivalent" of the Property Taken
- B. Factors Relevant in Determining Fair Market Value
- 1. Acts Related to the Taking
- 2. Prior Political, Social and Economic Conditions
- 3. Events Subsequent to the Taking
- C. Conclusions
- Chapter 16: Value of Expropriated Business Entities
- A. Determining Going Concern Status of a Business
- B. Going Concern Value Versus Net Book Value
- 1. Physical Assets, Debts and Liabilities.
- 2. Goodwill and Future Prospects.