Summary

IRAN-UNITED STATES CLAIMS TRIBUNAL
PARTIALLY DISSENTING OPINION OF JUDGE BRUNO SIMMA ON THE MEANING OF THE TERM "IRANIAN PROPERTIES"

I. INTRODUCTION: APPLICABLE LAW AND TREATY INTERPRETATION

1. While I find myself in agreement with most of the decisions and reasoning adopted by the Majority, I hold a different view with regard to the definition by the Majority of the term "Iranian properties" and, hence, to the scope ratione materiae of the obligation contained in Paragraph 9. The Majority claims that the interpretation of this treaty provision on the basis of the pertinent rules of public international law opens the way, indeed necessarily leads, to the definition of "Iranian properties" by way of exclusive application of a conflict-of-law analysis. According to the Majority, this method is to be applied to all items in question in the present case: extra legem rei sitae nulla salus. With all due respect, I see things differently: I base what I consider to be the correct view on the existence of a shared understanding by the Parties to the General Declaration of 19 January 1981, maintained over a long time, that by "Iranian properties" were to be understood assets fully paid for by the Claimant which would not qualify as "Iranian" according to the Majority's conflict-of-law analysis.

2. Paragraph 9 of the General Declaration of 19 January 1981 reads as follows: "9. Commencing with the adherence by Iran and the United States to this Declaration and the attached Claims Settlement Agreement (...), the United States will arrange, subject to the provisions of U.S. law applicable prior to November 14, 1979, for the transfer to Iran of all Iranian properties which are located in the United States and abroad and which are not within the scope of the preceding paragraphs."

3. I am not persuaded by the reasoning of the Majority, set out in paragraphs 93 to 164 of the Partial Award, according to which a state-of-the-art interpretation of the term "Iranian properties" in Paragraph 9 will lead to a clear and unambiguous result insofar as, in a first step, it will lead us to the concept of "ownership", whose substance in turn is to be determined by reference to "title", the passage of which, in a second step, needs to be assessed either by reference to the law designated by the contract of sales governing each transaction or, by default, by reference to the universally accepted rule of conflict of laws applicable to the transfer of title, namely the lex rei sitae /lex situs. If what is before us were a regular commercial case, I would share such a private law approach without hesitation. In the context of the Hostage crisis and the Algiers Accords, however, it is unconvincing and, much to my regret, I cannot subscribe to it.

4. I would have no objection to the reasoning of the Majority if it were not for the fact that the instrument at the basis of the present case is an international treaty. The Majority view pays lip service to this fact by subjecting this treaty to an interpretation which the Majority claims to be in accordance with the respective rules of the Vienna Convention on the Law of Treaties, but unfortunately this exercise is cut short half-way by the claim that its result is already to be found in the Tribunal's Partial Award 529, embodied in the notion of "title". I would submit that the main flaw of the Majority's view ultimately consists in its very premise that the term "Iranian properties" has a clear and unambiguous meaning. This premise limits the scope of Paragraph 9 to an extent that, in my view, does violence to an interpretation of the Algiers Declaration made in good faith as well as against the background of the Declaration's specific political context.

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Footnotes omitted.

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