The Islamic Republic of Iran v United States of America - Iran-United States Claims Tribunal (IUSCT) Partial Award No 604 in case No A15-II-A - Separate Opinion of Judge Mir-Hossein Abedian Kalkhoran - 10 March 2020
IRAN-UNITED STATES CLAIMS TRIBUNAL
SEPARATE OPINION OF JUDGE MIR-HOSSEIN ABEDIAN KALKHORAN
CONCURRING IN PART, DISSENTING IN PART
1. The purpose of this Separate Opinion to Award No. 604 (the Partial Award in Cases A15 (II:A), A26 (IV) and B43) (hereinafter briefly referred to as "Partial Award") is to record my separate understating and interpretation regarding the term 'Iranian properties' in Paragraph 9 of the General Declaration concluded on 19 January 1981 ("GD Para. 9"). I concur with the Partial Award's finding that 'Iranian properties' in the United States on loan, 'Iranian properties' sent to the United States for repair, and other Iranian-titled properties are properties 'solely owned by Iran' on 19 January 1981, falling squarely within the scope of the United States' obligation as enunciated in GD Para. 9. That being said, I feel compelled to dissent from the majority's finding that properties validly purchased and paid for by Iran that remained undelivered despite Iran being contractually entitled to delivery are not 'Iranian properties' for the purposes of the US obligation under GD Para. 9 because, under the supposedly applicable US law, title to such properties had not been transferred to Iran prior to delivery of the goods.
2. The majority argues in the Partial Award that "[t]he Tribunal [...] has interpreted the meaning of the term "Iranian properties" in Award No. 529 and is not called upon to reopen its decision on the matter [...]" It further states that "[a]t this stage of the proceedings, the Tribunal is charged with applying its decision in Award No. 529. Thus, it will determine whether claimed properties were "solely owned by Iran," and, therefore, whether they constitute "Iranian properties" within the meaning of Paragraph 9." According to the majority, "the legal basis of the ownership of property is title, the strongest conceivable of all real rights, and title is the right or proof of ownership. [...] The Tribunal concludes that title to property is therefore the objective means by which to determine the question of ownership over the property claimed and to conclude whether the property falls within the scope of Paragraph 9. Any interest in a claimed item of property that falls short of title would be insufficient to show that the item was "solely owned by Iran."" The majority then goes on to express that "[a] long line of jurisprudence, mirroring that of the Tribunal, confirms the application of general principles of private international law in determining whether title to property has been transferred." The majority then continues by that with regard to many cases, it is the lex situs of the asset in question that determines the time and place of the transfer of title.
Partial Award: The Islamic Republic of Iran v United States of America - Iran-United States Claims Tribunal (IUSCT) Partial Award No 604 in case No A15-II-A - 10 March 2020