In reaching the conclusion it envisaged, and in its decision finding the United States nonliable for breach of express or implied, and legal and contractual, warranties; or releasing the U.S. Government from its legal warranties; and, finally, absolving it of responsibility for latent defects, the majority acted hastily and without giving sufficient reasons, and it also committed errors and failed to take the manifest facts into account. Therefore, in this Dissenting Opinion, the facts shall first be set forth in one Section, and then the reasons for this dissent to the Award shall be explained in a separate Section.
The Claimant has clearly demonstrated that between the time of the 1953 coup d'etat and the victory of the Islamic Revolution in Iran, the only real source of weapons and military equipment and materiel was the United States, or the private United States companies selected by the United States, which Government also exercised control over those companies' dealings with Iran. Iran's Air Force and Army Aviation were totally under America's control. It was the United States and its experts that determined the kind and quantity of equipment and weapons, whether from the technical or the strategic point of view, as well as many other important matters, and the Iranian Army could equip itself with only those kinds of equipment and materiel which were permitted by the United States.
The Government of the United States hereby offers to sell to the above Purchaser [Government of Iran], the defence article(s) and defence service(s) listed below, subject to the terms contained herein and conditions cited on the reverse.'
The then Deputy Minister of War accepted this offer on 2 November 1972, whereupon a contract for the purchase of 287 helicopters equipped with (improved) T-55-L7C engines conforming to the particular specifications desired, plus 75 spare engines and a quantity of other equipment, services and materiel, was entered into for the initial price of $407,991,975.
In light of the importance of the contract, General Ellis W. Williamson, Chief of the U.S. Military Advisory Group stationed in Iran, by a letter dated 6 December 1972 informed the then Deputy Minister of War that the U.S. Department of Defense wished to obtain the Iranian Government's consent to issuance of an announcement in the mass media. It was agreed to issue such an announcement, even though to do so was apparently contrary to the policy of the regime of the time, according to which military purchases were to be kept secret. The announcement stated, inter alia, that:
The Government of Iran announced today that it will purchase from the U.S. Government a total of 489 helicopters to be manufactured by Textron's Bell Helicopters... This procurement will be conducted on a Government to Government basis and was initiated by Iranian acceptance of U.S. Government Letters of Offer for 202 AH-1J twin Cobras and 287 Model 214A advanced utility tactical transports.'
It is therefore the intention of the IGOI [the Imperial Government of Iran] not to place further orders for 214A Helicopters in addition to what has already been procured and received. In addition the program for manufacturing of 50 each 214A in Iran is pending upon elimination of compressor stalls.'
According to the mission planned for such helicopters, and as described in detail in the above-mentioned specifications manual, these aircraft were supposed to be able to function on the battlefield as a troop carrier and a military materiel and equipment transporter, as well as a support craft, and for marshalling forces and evacuating the wounded from the battlefield to behind the front lines. For this reason, the helicopter was to be maneuverable enough to be able to fly in all kinds of climatic conditions and over all kinds of terrain, at near ground-level and at high altitudes, and to land or take off in uneven rough terrain which had not been prepared for landings or take-offs.
... "(d) The inspection and test by the Government of any supplies or lots thereof does not relieve the contractor from any responsibility regarding defects or other failures to meet the contract requirements which may be discovered prior to acceptance. Except as otherwise provided in this contract, acceptance shall be conclusive except as regards latent defects, fraud, or such gross mistakes as amount to fraud." (emphasis added)
In part, one clause excerpted from the alleged contract with Bell provides as follows:
Warranty: BELL HELICOPTER COMPANY hereby warrants to the original purchaser only each new helicopter and part thereof sold by it to be free from defects in material and workmanship under normal use and service, its obligation under this warranty being limited to replacing or repairing such part at its factory...'
And according to a provision excerpted from the alleged contract with Lycoming:
AVCO Lycoming Division, AVCO Corporation hereby warrants that at the time of shipment from AVCO Lycoming's plant each new T5508D Engine sold by it will be free from defects in material and workmanship under normal use and service. AVCO Lycoming's obligations under this warranty shall be limited to the repair or replacement, at AVCO Lycoming's election, of any engine or part thereof...'
The U.S. Army will test the 214A helicopter and helicopter components and subsystems to confirm that the specifications are met.'
2. "Unfortunately till this date we have not received any information about the result of any test or any ECP because of tests...
4. Please take expedited action to investigate the mentioned matters and inform us what has been done in respect to engine tests and the reason for incidents and many failures which... Iranian Army Aviation is experiencing and advise us about reliability of the engine and other components of the said helicopter."
In a letter to Colonel R.H. Stephenson in 1978, Mr. A.C. Bozzelli, Bell's Director of Administration and Contracts, stated that:
Engine compressor stalls have been a frequently reported problem of the Model 214 helicopters since its [sic] introduction in country (April 1975).'
In a briefing session held on 3 November 1976 with Army officials of the time, General Johansen, Commander of the United States air-ground support systems, pointed to
Deficiencies in the 214A revealed by early operations in the field.'
Engine compressor stalls have been a frequently reported problem of the Model 214 helicopters since its [sic] introduction in country (April 1975). Compressor stalls, which not being unique to the 214, have been highlighted as a major problem not only because of the frequency of reported stalls, but because it is a relatively new aircraft and the stalls seem much more severe...'
... At this point, the source (or sources) of the problem cannot be positively determined. Basic engine design, engine component design, and aircraft air intake design are all distinct possibilities.'
In his letter dated 4 April 1978 to the then Deputy Minister of War, AVCO-Lycoming's Vice-President stated that:
During a recent briefing here [in U.S.A. with the representatives of U.S.G. and Bell], the continuing problem of compressor surge (or compressor stall) of the LTC4B-8D engine in the Bell model 214 was discussed in great detail...
... We had hoped that in fact, the anomaly in blades was the real cause of the surge problem in Iran but testing thus far does not yet provide this evidence...
Further, it is my desire to impress upon you AVCO-Lycoming's commitment to support our products in the field and to insure that these products will continually be supported throughout the life of the program.'
Deficiencies in the 214A were revealed by early operation in the field. This led the U.S. Government and contractors to mutually develop improvements to assure required reliability.'
At that same time, he admitted the existence of a new defect, stating that:
A deficiency that we discovered very recently involves the main transmission. During a cross check of quality we found that upper ring in transmissions in several 214 helicopters were manufactured with the wrong kind of metal...'
He also acknowledged that the United States could pursue the matter against the manufacturer even though the equipment had been inspected and accepted, because this was a hidden defect:
This is a hidden defect that could not have been discovered by the U.S. Government during a reasonable acceptance inspection.'
At the end of the session, General Johansen informed those present that as a representative of the United States (the Seller), he was also aware of the importance of, and concerned about, the matter:
I will be formally outlining my assessment and concern to BHT in more detail upon my return to the U.S. The specific action I take will be based on further analysis of contract provisions by my legal staff. I plan to keep all practicable pressure on BHT until these problems are solved...'
On 27 January 1977, General Johansen informed the then Deputy Minister of War that the United States had succeeded in remedying the problem discussed at the 3 November 1976 briefing session, and that Bell Helicopter Textron had accepted its contractual obligations towards them. He concluded his letter with the following sentence:
Please be assured that the U.S. Government will maintain close surveillance of BHT during the replacement actions taken.'
The United States was still admitting the existence of a technical problem resulting in engine turbine stall as late as 1978. In a briefing session on 22 May 1978, General Richard H. Thompson told Iranian Army officials that:
Compressor stall is the major technical problem in the 214 program. It impacts on operations and there are restrictions on 214A flying. In December I described several fixes to reduce compressor stalls.'
The flight limitation eventually imposed on all helicopters as a warning and imperative directive on the advice and approval of the United States, which warning was left posted in all of the helicopters as evidenced by the slides shown at the Hearing conference, directed that the engines must not be operated at more than 91% of capacity at high altitudes. The directive set other limitations as well, inter alia that the time interval between each engine cleaning be cut in half, and later, as shown by Iran, to one-fourth, as a result of which the helicopters were unable to perform long missions (either in time or in distance)6. In its pleadings, and at the Hearing conference, Iran explained-and the United States did not lodge any objection to that explanation-that the restriction against operating at more than 91% of engine capacity in reality substantially reduced the helicopters' coefficient of reliability in maneuvering and in carrying out the missions for which they had been purchased, to such an extent that the helicopters' level of efficiency was reduced to one third. For as General Stevenson testified at the Hearing, in order to avoid accidents pilots had to avoid flying over mountains, steep heights or waters, ie. places which wold make a forced landing impossible.
The GOI did limit the helicopter flight profile to exclude nite flights and to only those geographical areas wherein a successful forced landing could be made.'
1. As you are aware, the engine of helicopters 214 repeatedly face compressor stall, and because of this defect, a large number of the helicopters cannot fly and those which are ready to fly have repeatedly compulsory landing... This defect has caused the pilots to lose their flight morale and as a result, their efficiency is being decreased day by day...
... considering the problems and the subject submitted by Lycoming representative, it is presumed that the manufacturing company has not yet found the defect, or they do not want to accept the design defect of this engine officially.'
In a letter to Bell Helicopter Textron, a copy of which was sent as well to the Chief of the United States Military Advisory Group, the then Deputy Minister of War stated on 20 November 1978 that the defect was due to the design:
1. We have reminded you in [sic] many occasions of the critical problem of compressor stall arising during the operation of 214A Helicopters. As this problem is basically attributable to the engine design, the corrective actions implemented so far have not eliminated this problem.'
We are attorneys for the Croman Corporation... which has suffered the loss of two model 214 Bell Helicopters...
It has come to our attention that the Government of Iran purchased some 200 similar machines from Bell for use by its Air Force, and that the experience of the Iranian Air Force with the machines has been unsatisfactory because of the propensity of the machines to stall in flight...
... We have developed extensive files showing the history of similar failures incurred by other operators in the United States and Canada...'
The Buyer's primary objective in entering into the transaction was, to be able to use over 91% of engine capacity (at high altitudes or close to the surface of the land and sea) for military missions and maneuvers. If the Buyer had known that the aircraft lacked such capabilities, this would not only have stopped him from entering into the transaction, but drastically reduced the value of Bell's helicopters as well. The Claimant has assessed this reduction as being equal to two-thirds of the cost.
-The United States was liable for breach of its warranty that the goods conformed to the specifications;
-The United States was not relieved of liability with respect to its guarantee of the merchantability of the helicopters, and of their suitability for the purposes for which they were purchased;
-The United States was liable for latent defects; and
-The United States was responsible for pursuing the Claimant's damages and for ensuring that he was indemnified therefor by the subcontractors.
Although it can be inferred from the Award that the majority has properly refrained from accepting United States municipal law as the law governing the contractual relations between these two members of the international community (footnote to page 19 of the Award), at the same time it has not resolved the issue of what law does govern those relations-namely public international law and those principles of law which are accepted by the various legal systems-and indeed, it has intentionally avoided dealing seriously with the issue of the governing law. This is because if it had determined the governing law, it would have had either to submit to the logical and entirely foreseeable conclusion thereof (ie. that the Claimant's claim is valid) or to bear the heavy burden of having rejected the Claimant's reasonable and justified arguments. Rather than accepting the above results, the majority has preferred to reach its decision in a vacuum and to base its Award on insubstantial grounds without help of the governing law.
(a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of bargain creates an express warranty that the goods shall conform to the affirmation or promise.
(b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.'17
In such instances, United States law has even permitted a buyer who accepted and took receipt of goods, to recover his damages from the seller. Article 2-714 of the UCC provides that:
(1) Where the buyer has accepted goods and given notification... he may recover as damages for any non-conformity of tender the loss resulting in the ordinary course of events from the seller's breach as determined in any manner which is reasonable.
(2) The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount.
(3) In a proper case any incidental and consequential damages under the next section may also be recovered.'
(2) Except where the parties have agreed otherwise, the goods do not conform with the contract unless they...
(a) are fit for the purpose for which goods of the same description would ordinarily be used;
(b) are fit for any particular purpose expressly or impliedly made known to the seller at the time of the conclusion of the contract, except where the circumstances show that the buyer did not rely, or that it was unreasonable for him to rely, on the seller's skill and judgement...'23
In the event that the seller fails to deliver to the buyer goods which conform to the specifications, the aforementioned Convention permits the buyer to seek damages for breach of warranty (Articles 45-74, and particularly Article 50, of the Convention).
In order to arrive at such a conclusion, the majority has relied upon Articles A2 and A3 of the General Conditions, and on Note 12 (of the Special Notes) of the LOAs.
-According to Article A2, when the United States Government procures for itself,
Its contracts include warranty clauses only on an exceptional basis. However, the Government of the United States shall, with respect to items being procured, and upon timely notice, attempt to obtain any particular or special contract provision and warranties desired by the Purchaser... Any additional cost resulting from obtaining special contract provisions or warranties, or the exercise of rights under such provisions or warranties... shall be charged to the Purchaser.' (emphasis added)
-And according to Article A3, 'the Government of the United States... makes no warranties other than those specifically set forth herein...'
-Finally, Note 12 states that the United States Armed Forces do not utilize the aircraft involved in the transaction at issue,25 and that:
... Should purchaser accept procurement under the provisions of this Letter of Offer, the following must be clearly recognized and accepted.
a. Item is not standard with U.S. Army.
b. Item will be produced in accordance with contractor prepared specifications. The U.S. Army will test the 214A helicopter and helicopter components and subsystems to confirm that the specifications are met. U.S. Army cannot warrant or guarantee item...' (emphasis and footnote added)
The situation with Article A3 is also more or less the same as that with Article A2, for that Article introduces an immediate exception to the so-called release or disclaimer clause which, that is, excludes the warranties expressly set forth in the contract. Apart from the fact that the helicopter description and specifications were expressly stated (as discussed in Section 'B' of this Part, paras. 28-33 of Part II, supra), the Purchaser's aim and objective, as well as the helicopters' mission, were set forth in the contract as written and express conditions. Therefore, the obvious and definite conclusion is, that Article A3 has not excluded such warranties, either.
Finally, extending the provisions of Note 12 to the claims at issue in this Case would disregard the facts set forth (briefly) in para. 12 of Part I of this Opinion. Note 12 merely excused the U.S. Army from a double warranty; in other words, it prevented joint liability on the part of the U.S. Government (the Seller) and the U.S. Army (the tester of the helicopters at the time of delivery). The injurious consequence of any other interpretation than that set forth in the present paragraph would be, that the U.S. has seemingly been able, by such an interpretation, to withdraw with one hand the express warranties which it gave in the contract with the other hand.
Firstly, warranties (whether express or implied) are recognized by the law of various nations in order to protect the purchaser against possible claims of nonliability26, and thus the allegation of release from and disclaimer of liability vis-a-vis express warranties is not admissible. Moreover, as against implied warranties, the language must be entirely clear and conspicuous; eg., as where it is stated that it is not agreed to warrant the merchantability of the goods, or their conformity to the specifications set forth in the contract27.
Secondly, a release or disclaimer clause must be interpreted narrowly, and not so broadly that, as the majority has done, the provisions of Articles A2 and A3, and Note 12, are used in order to disclaim even express warranties28.
Thirdly, under present-day law, it is presumed, in view of technological progress and the growing specialization of goods, that a professional seller is aware of defects in the goods sold, particularly in the case of the sale of technically sophisticated goods. The seller of such goods cannot relieve himself of his obligation under the shelter of clauses which limit, or release him from, his liability arising from his stipulated warranty29.
The United States accepts this obligation both as a contractual obligation (by reason of its retention thereof in its relations with the subcontractors) and as a legal obligation; and in this connection, it has relied on numerous decisions by United States fora, inter alia the Board of Contract Appeal, which demonstrate that where there is a latent defect, or where acceptance took place as a result of fraud or gross error, the buyer is not deprived, by his acceptance of goods, of the right to seek damages.
In the course of remedying the problems arising from the compressor stall defect in the helicopter engines, the United States acted exactly in accordance with the above; it accepted that it and its subcontractors were responsible for remedying the defect, and it made an effort to eliminate the flaws. In certain instances, it replaced turbine parts-eg., replacing all the turbine blades and transmissions32.
Under United States law, the damages which the buyer is able to claim after acceptance as a result of discovery of a defect, are apparently similar to the damages arising from a breach of the description-ie. he may seek the difference between the value of the defective goods and the price of sound goods33, and the consideration must be restituted to him if the goods have become totally worthless34.
However, because the Claimant cancelled the Product Improvement Program through its failure to fund the FMS Case WEQ, the cause of the compressor stalls was never discovered.'
Firstly, in connection with LOA WEQ, although the necessary explanations were provided, albeit in brief, in para. 12, supra, we should note that the scope of this LOA did not go beyond that of LOA VGN or the Performance Verification Program.
Secondly, it is not at all clear why the majority holds that Iran should have paid the costs of determining the cause of the latent defect which, as everyone has accepted, arose from the engine's design; nor is it clear why this pretext should serve to relieve the Seller and his subcontractors of their contractual/legal obligations.
More than three years passed from the time that the helicopters were delivered and the stalling defect appeared, to the time that the Product Improvement Program was allegedly cancelled, during which time the many tests and programs for discovering the latent defect, which was not found because it related to the engine design, failed to bear results. The majority has not explained why the Claimant should undergo further expense in time and costs in order to exercise and apply its legal and contractual rights.
Thirdly, it is not clear why the majority has forgotten that in order to establish the existence of a latent defect, the criterion is that the defect (here, the engine compressor stall) be in existence and hidden at the time of delivery; it is not a criterion that the cause of the defect be established39. It is unclear on the basis of what legal rule and principle the majority has reached the conclusion that in addition to proving the existence of the defect (the turbine compressor stall, which everyone knew about and admitted and still does, and which appeared right from the time the helicopters were delivered and has still not been remedied), the Purchaser must also establish the cause of the defect. It is unjustified and illogical to place the burden of such a responsibility on the Purchaser who, first of all, relied on the expertise and experience of the Seller because he himself lacked the necessary expertise, and who might, secondly, be obliged thereby to bear in certain cases expenses greater than the value of the goods themselves40.
Fourthly, if the majority was pursuing the cause of the defect in Order to establish whether it was a latent defect, then in that event-aside from acting in violation of legal principles-it has gone further in its Award than that which the Respondent and the manufacturers of the helicopters themselves believed, in evincing doubt on a matter which the Parties to the transaction do not dispute, since the contemporaneous evidence demonstrates that no one had any doubt that the stalling defect was a latent defect which came to light only after delivery. The majority would appear to have forgotten that:
-Up to the second half of 1978 (towards the end of which year the relations between Iran and the United States were altered by the events of the Islamic Revolution), Bell Helicopter itself admitted the fact that the helicopters had a fundamental defect right from the time they were delivered to Iran, a defect which related to the design of the helicopter, its engine, or components thereof (para. 17, supra). None of the reasons enumerated by Bell as the cause of the defect can be regarded as being one which appeared after the helicopters were delivered, and as causing a defect-one, at that, which took precisely the same form (the compressor stall) in every case.
-Early in 1978, AVCO-Lycoming admitted that the measures which had been taken to remedy the problems which, it had been thought, might have caused the engine stall, had been unsuccessful; and it thus gave assurances that it considered itself responsible until the defect was completely eliminated (para. 17, supra). It is inconceivable that AVCO would have taken on such responsibility if it believed that the defect was related to factors other than the design (in short, to factors other than a latent defect prior to delivery, which was discovered subsequently).
-The United States itself has acknowledged that the compressor stall defect, which appeared immediately after delivery, was related to the design, and on the basis of this belief, it stated in the directive of 9 August 1978 that the imposed limitations should be observed 'until such time as design changes can be incorporated.'
Before that time, General Thompson stated in a briefing session on 22 May 1978 that the compressor stall was a fundamental technical problem in the 214 Bell helicopter (cf. para. 18, supra).
-Immediately following delivery, Iran repeatedly took the position, in contemporaneous correspondence and meetings, that the compressor stall defect arose from the engine's design, and it brought the matter to the attention of the United States, Bell and AVCO (para. 20, supra).
Moreover, under the LOAs, before the United States could be held liable for failure to pursue a claim against Bell on Iran's behalf, Iran would be required to request the United States to pursue such a claim against Bell. The Claimant has presented no evidence that it ever requested the United States to pursue a latent defect claim on its behalf against Bell.'
Firstly, the majority's statement on this matter is very broad, vague and ambiguous; moreover, it fails to make clear according to which of the terms of the LOAs, Iran should have notified the United States of its obligation to pursue the matter of the latent defect against the manufacturers; nor does it indicate which Article of the LOAs specifically requires Iran to make such a request, or according to which clause Iran's failure to make the request deprives it of its contractual rights.
Secondly, the basic problem is that in arriving at this conclusion, the majority has unfortunately been compelled to obfuscate certain facts, and to disregard the totality of the facts. There is no way to justify the majority's disregard for Iran's statements and correspondence in connection with the engine stall defect, and its repeated requests that the defect be eliminated and, finally, the promises of the United States and the manufacturers. The evidence submitted to the Tribunal, which precisely proves these facts, is so ample and varied that there is not sufficient space in the present Opinion to cite and discuss each of those evidentiary documents; for in that event, one would have to invoke the contents of all the exhibits to the pleadings.
Not only did Iran request at all stages, prior to severance of relations between the two nations, that the issue be pursued and the problem eliminated, but the United States itself also repeatedly promised, in response to Iran's initiative in following up the matter, that it would pursue it through various channels, inter alia legal avenues. Moreover, at certain stages it even took positive measures, pursuant to these efforts by Iran, to eliminate the defects thought to have caused the compressor stall problem.
In the briefing session of 3 November 1976, General Johansen stated, in response to efforts by then officials of the Army in following up the matter, and after stating that the stalls were possibly due to a defect in the transmissions, that:
As a matter or urgency, I have directed my legal counsel to determine whether or not we can hold Bell liable for costs to inspect and replace those transmissions.'
He also promised Iran that:
... however, we will do everything possible to assure that GOI contractual rights are protected...'
Elsewhere in the proces verbal of the same briefing session, under 'Overall Assessment,' General Johansen states that:
I will be formally outlining my assessment and concern to BHT in more detail upon my return to the U.S. The specific action I take will be based on further analysis of contract provisions by my legal staff.'
After following up the matter in the legal area, General Johansen informed the then Deputy Minister of War, in a letter dated 27 January 1977, that he regarded the problem as a latent defect, and that the United States' subcontractor could be held responsible for eliminating it. In concluding the letter, he gave assurances that:
Please be assured that the U.S. Government will maintain close surveillance of BHT during the replacement actions taken.'41
This issue was pursued by then officials of the Army at a briefing session conducted on 22 May 1978 by another U.S. general (General Richard H. Thompson). At that meeting, the said U.S. general stated as follows in connection with the compressor stall in the helicopter engines, which had remained a defect in the helicopters up to that time despite the turbine blades and transmissions having been changed:
With regard to the compressor stall problem itself, I have directed my procurement and legal staff to determine if there are any remedies available for your benefit in either our contract with BHT or BHT subcontract with Lycoming. We will report any progress in this area.' (emphasis added)
The majority has also forgotten that it was due to this pursuit of the issue that the United States arranged the Product Improvement Program with Bell and AVCO-Lycoming (p. 26 of the aforementioned proces verbal).
Finally, an internal report of the U.S. Department of Defense, filed with the Tribunal in the United States' final submission, makes it entirely clear that Iran had continually pursued the issue and that the United States was also fully aware of the responsibility which it or its subcontractors had to Iran42. This report states that pursuant to Article 7-103.5 (para. 10, supra), upon testing and acceptance of the helicopters the subcontractors would not be relieved of liability for any damages arising from defects, if the existence of latent defects, fraud or gross error were proved. Moreover, after noting that it would probably not be possible to pursue a claim under the heading of fraud or gross error, the report went on to state:
However, a principal focus of the investigative effort currently in process is to determine whether a latent defect situation exists. Should our investigation uncover facts which may be classified as a latent defect the Government will of course fully assert its right against the contractor.'
In conclusion, it must be noted that it is not entirely clear that the majority intends in this part of the Award, by stating that the Claimant should have sought to pursue the 'claim' against Bell. Whatever the purpose in choosing the word 'claim' may have been, the evidence, inter alia what has been set forth in brief above, establishes that Iran always sought, and the United States intended, to pursue the matter legally. At any rate, it must be noted that if the majority's intent in using the word 'claim' is that a suit should have been brought and pursued before the courts, one does not see what use or result bringing a suit could possibly have had, given the manufacturers' admission of the existence of their obligation, the promises given to eliminate the problem whatever the price and under any circumstances (inter alia, AVCO's letter of 4 April 1978)43, and the promises by the United States as mentioned above. Furthermore, the United States' failure to pursue the issue through the courts or other competent fora should not be regarded as grounds for divesting Iran of its rights.
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