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Concurring and Dissenting Opinion of Judge Charles N. Brower

I. STATEMENT OF DIFFERENCES

1.
I concur with the Separate Opinion of Judge O. Thomas Johnson, Concurring in Part, Dissenting in Part, in which Judge Johnson concurs in the present Concurring and Dissenting Opinion, as does Judge Gabrielle Kirk McDonald. I would have reduced the amounts awarded for Specific Litigation Expenses and Monitoring Expenses as follows:

A. I would have reduced the amount awarded in paragraph 294(a) of the Award by a total of $34,103.36.

B. I would have reduced the amount awarded in paragraph 294(b) of the Award by a total of $20,579.62.

C. I would have reduced the amount awarded in paragraph 294(e)(iii) of the Award by a total of $1,286.39.

2.
The specific items as to which I differ with the majority and the extent of each such difference are recorded in the annexed "Schedule of Differences," the accuracy of the first three columns of which is attested by the Award in paragraph 251. I differ with the majority as thus set out because to the extent of such differences I do not believe that the majority has correctly applied the ruling of the Partial Award, or its own holdings in the Award. Additionally, as indicated in the "Schedule of Differences," I dissent to the Tribunal's decision to consider that settlement negotiations occur "as a result of" appearances and filings.2

II. THE TRIBUNAL'S EX AEQUO ET BONO GRANT OF $405,304.29, A WINDFALL CONSTITUTING 48 PERCENT OF THE AWARD

3.
As Judge Johnson has explained well in his Separate Opinion, Concurring in Part, Dissenting in Part, I cannot accept that there is any colorable legal basis on which to grant the Claimant $70,000 in monitoring expenses related to Shack & Kimball plus $50,000 in "other losses" related to the Marriott matter. Individually and collectively, those two grants simply constitute a "giveaway." Granting Claimant the $50,000 is simply not sustainable as a legal proposition. Regarding the $70,000 "gift," as I perceive it, to Claimant for Shack & Kimball monitoring expenses, there is no evidence whatsoever of such expenses that requires an "equitable" adjustment. It cannot be true that it "would be grossly unfair,"3 or even just plain "unfair," were Claimant not awarded anything on this account. Claimant did not even itself estimate an amount for such monitoring.4 It produced no records that would support charges for monitoring.5 Stated simply, there was no proof of any kind. The award of $70,000, or 8.6665 percent of Shack & Kimball's relevant overall billing (of $807,705.81), is simply baseless.6 Moreover, each dollar granted in respect of $50,000 for Marriott actually constitutes a gift of at least $3.47, given the pre-judgment interest it carries,7 and each dollar granted in respect of $70,000 for Shack & Kimball monitoring expenses constitutes a gift of $3.31 given the pre-judgment interest it carries.8 As a result, the principal and pre-award interest for these two items total $405,304.29, or fully 48 percent of the $842,468.14 granted by the Award. Both items cannot be seen as anything other than an unauthorized decision ex aequo et bono.9
4.
In respect particularly to the $70,000 just discussed, the Tribunal incorrectly relies for its claimed authority to estimate damages, or to make an equitable adjustment, on cases involving contested issues of valuation in expropriation and breach of contract cases, an entirely different genre of cases in which there often is endless expert proof of damages, most frequently conflicting, but giving a tribunal a basis on which to work out actual damages in what necessarily is an imprecise process. The numerous authorities the Award cites in paragraphs 230-231 and their appended footnotes in support of its claimed power to do what it has done fall into that category.10 One would have thought our colleagues in the majority would have known better than to resort to an inapposite line of cases to justify giving Claimant what can only be characterized as a windfall. One would have expected this to be particularly the case when implementing a Partial Award in which our predecessors made it clear that "The Tribunal... expects Iran to produce factual evidence of the losses it suffered as a result of monitoring of the suspended claims," a mandate which the Award has totally ignored.11 Moreover, the Award expressly concedes that "the issue for this Tribunal [is]... whether the monitoring... was compensable as a matter of principle and supported by the evidence submitted."12
5.
The Award's attempt to draw strength from the incontestable proposition that equity is a constituent element of some rules of law13 is not persuasive. As the MTD ad hoc Committee Decision cited by the Award made clear:

... [I]ndividual rules of law will often require fairness or a balancing of interests to be taken into account. This is the case with the fair and equitable treatment standard itself, the standard the Tribunal was required to apply.14

This Award's decision to grant the $120,000 (plus interest of $285,304.29) in question does not apply equity as an aspect of a legal principle, but rather, in the words of that same ad hoc Committee, makes a "determination ex aequo et bono of disputes, i.e., of the substantial matter referred to the tribunal."15

III. CONCLUSION

6.
For the reasons stated above, I have no alternative but to dissent from the Award insofar as it grants the sums indicated above and in the annexed "Schedule of Differences," in addition to otherwise joining the Separate Opinion of Judge O. Thomas Johnson, Concurring in Part, Dissenting in Part.
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