The Tribunal considers that the Parties should be afforded an opportunity to more fully present and argue their contentions. However, in view of the fact that the proposed sale is scheduled to proceed on 15 August 1983, the Tribunal finds it appropriate immediately to request that the Claimant take measures to assure that the proposed sale is not carried out until the Parties have had such opportunity and until the Tribunal can render its decision on the Request of the Ministry of Defense.
For these reasons, and pursuant to Article 26 of the Tribunal Rules, the Tribunal,....
(1) requests the Claimant to take whatever measures are necessary to assure that the sale of assets scheduled for 15 August 1983 is not carried out;
(2) invites the Parties to file by 15 September 1983 any further written submissions they may wish to make in relation to the... Requests of the Ministry of Defense, including also the question of which party should bear any costs incurred by the Claimant as a result of not carrying out the sale of assets on 15 August 1983....
[T]he Tribunal requests that the Parties submit any written evidence and memorials they wish the Tribunal to consider, relating only to jurisdiction, by 29 March 1985. In light of the fact that the Parties have already expressed themselves on the jurisdictional issues in their written submissions and at the meeting of 12 February 1985, it is not anticipated that any extensions will be granted. After 29 March 1985, the Tribunal will determine whether any further oral argument on jurisdictional issues is necessary.
[P]ursuant to the [U.] [S.] [B]ankruptcy [A]ct, all proceedings are automatically stayed. [I]n any event, [B]ehring requests a 90 day postponement to allow the debtor-in-possession sufficient time to analyze proceedings pending at [T]he [H]ague.
1. I.R.I.A.F. will, within one week of the execution of this Agreement, deposit to [a] Trust Account $635,000.00, and the Trustees will draw a check payable to Behring for the $635,000.00 which I.A.C.I. has verified as being owed.
3. Behring will consent to an order of the District Court removing temporary restraints which have been placed on I.R.I.A.F. and I.A.C.I. materials by previous order of that Court which order shall incorporate the terms of this Agreement by reference so that any party hereto may on short notice, seek the assistance of the Court (including contempt proceedings) in compelling specific performance of this Agreement.
4. Concurrent with the lifting of restraints, I.R.I.A.F. will put into the Trust Account at Broad Street National Bank of Trenton an additional $230,000.00 to secure the additional claims which Behring has against I.R.I.A.F., I.A.C.I. and the Iranian Navy until all the terms of the settlement have been satisfied.
5. Behring will furnish documentation, in accordance with past practice, to support its claims for expenses and line item charges against I.R.I.A.F., I.A.C.I. and the Iranian Navy in excess of $635,000.00.... With respect to all such excess sums as to which there is not dispute over the adequacy of documentation, those sums shall be paid to Behring within 30 days after submission of the documentation....
6. In the event of a dispute between the parties as to the adequacy of the documentation to be provided by Behring pursuant to Section 5 above,... that dispute shall be settled by arbitration... and the arbitrators' decision shall be binding and final.
11. I.R.I.A.F. and I.A.C.I. will arrange for WRAMS, Inc. or other carrier(s) to remove the I.R.I.A.F., I.A.C.I. and Iranian Navy (if any) materials from the warehouse and transport them to McGuire AFB for transshipment to Iran. Behring will cooperate with WRAMS personnel in having the materials removed by having the materials placed at the Edison warehouse loading docks.
14. Behring will, without charge, allow I.R.I.A.F. and I.A.C.I. materials to remain in the Edison warehouse until all such materials are removed for shipment to Iran. However, it is agreed that all materials will be removed from the Edison warehouse prior to December 15, 1979, and if said materials have not been removed from the Edison warehouse prior to December 15, 1979, Behring shall nevertheless receive all payments to which it is entitled under this Settlement Agreement unless such inability to remove them is caused or contributed to by the conduct of Behring. In no event will the materials in question be allowed to remain at the Edison warehouse beyond December 15, 1979.16
16. When all of the foregoing conditions of settlement have been either fulfilled, waived or otherwise satisfied..., I.R.I.A.F. and Behring will join in a request for a consent order directed to the District Court to order such sum to be paid to Behring out of the Trust Account as is necessary to complete payment of the amounts owed by I.R.I.A.F., I.A.C.I. and the Iranian Navy to Behring, plus $1,000,000 and any additional amount remaining in the Trust Account is to be returned to I.R.I.A.F., exclusive of interest which accrues after the execution of this Agreement on all sums to which Behring is entitled pursuant to the terms hereof, which accrued interest shall be paid to Behring.
17. Upon completion of all steps described above, with the exception of any dispute under paragraph 6, Behring and I.R.I.A.F. and I.A.C.I. will cause Civil Action No. 79-675, including all claims and counterclaims asserted or unasserted, against any party, to be dismissed with prejudice on the records of the Court.
18. The parties will execute and exchange releases releasing all claims and counterclaims of each of the parties (asserted or unasserted), arising out of or in connection with the subject matter or activities described in the pleadings in Civil Action No. 79-675 or the contracts between them. Said releases shall be executed by the appropriate officer of each of the parties.
(1) enforce the settlement agreement as to the transfer of the balance of the trust account, $373,386.61; (2) enforce the settlement agreement as to the removal of IRIAF's and IACI's property located in Behring's Edison warehouse or, alternatively, obtain an order in aid of litigant's rights because of the Iranian defendants' failure to remove the property....
Behring, slip op. at 4. In an opinion filed on 5 November 1981, the District Court denied Claimant's motion in part and granted it in part. Id. at 1. With respect to Claimant's motion to order the transfer of the balance of the Trust Account, the District Court held that disputes as to amounts owing prior to 19 January 1981 had to be presented to this Tribunal under the terms of the Algiers Accords. Id. at 6. With respect to Claimant's motion seeking an order specifically enforcing paragraph 14 of the 1979 Settlement Agreement, obligating Respondents to remove the goods from Claimant's warehouse, the Court likewise held that the claim must be filed with the Tribunal. Id. Finally, with respect to that portion of Claimant's motion relating to storage and maintenance charges accruing after 19 January 1981, the Court held that:
The charge for storage after January 19, 1981, however, is a claim that arose subsequent to the date the Algerian Declarations were signed. Thus, this claim need not be presented to the Tribunal and is not suspended by Executive Order 12294. This court has jurisdiction to decide this issue and finds that Behring is entitled to the cost of storing and maintaining defendants' property from January 20, 1981 to the present. Behring has certified this cost as being $17,000 per month until June 30, 1981 and $23,000 per month thereafter.
Id. at 6-7.
(1) that its demand for payment was not a claim outstanding as of January 19, 1981; (2) that the choice of forum clause in the original contract vitiated the effect of the [Claims Settlement] Declaration and Executive Order; and (3) that Behring falls within a special exception for warehousemen.
Behring Int'l, Inc. v. Imperial Iranian Air Force, 699 F.2d 657, 661 (3d Cir. 1983). The Court of Appeals rejected each of these contentions and affirmed the ruling of the District Court, though it used different reasoning.23
MEMORANDUM OF AGREEMENT
This memorandum incorporates the essential terms of an agreement reached between Behring International, Inc. ("Behring") and the Islamic Republic of Iran (representing all of its subordinate agencies and instrumentalities) ("Iran"). The parties agree to execute a final settlement agreement promptly after 12 p.m., August 17, 1983, incorporating the terms of this agreement and including a final settlement between them, as provided for hereinafter.
A. Behring assumes the following obligations:
1. To cancel the sale of Iran's property located at its Edison, N.J., warehouse ("the stored property"), scheduled for August 15, 1983;
2. To relinquish and waive its possessory lien under N.J.S.A. 12A: 7206, 7209, for any storage charges up to and including September 15, 1983, related to the stored property;
3. To use its best efforts to facilitate the removal by Iran of the stored property from its Edison, N.J., warehouse and to permit Iran to consolidate and palletize the stored property for purposes of removing it from Behring's loading dock during normal business hours;
4. To provide reasonable access to representatives of Iran to inspect the stored property and to turn over to Iran at the Edison, N.J., warehouse all existing records, inventories and other documents generated in connection with the transportation and storage of the stored property;
5. To provide to Iran a copy of the U.S. Treasury license permitting removal of the stored property to another warehouse in the United States.
B. Iran assumes the following obligations:
1. To pay to Behring the sum of $675,000 by 10:30 a.m., August 15 1983, by certified or cashiers check or by wire transfer to an account designated by Behring.
2. To pay simultaneously into an interest-bearing trust account maintained by Kaplan Russin & Vecchi an amount of $125,000, which payment shall also be made by certified or cashier's check or by wire transfer and verified to Behring by Kaplan Russin & Vecchi.
3. To remove all of its stored property from Behring's Edison, N.J., warehouse not later than September 15, 1983. Upon failure to remove the stored property by that date, Iran shall pay by the first day of each month thereafter, all actual costs incident to the maintenance and warehousing of the stored property after September 15, 1983, which costs shall not exceed $23,000 per month.
4. Not later than 12:00 noon, Wednesday, August 17, 1983, Iran shall advise Behring in writing whether the settlement agreed to herein comprises a total settlement of all claims and counterclaims between Iran and Behring, or whether Claim No. 382 pending before the Iran-United States Claims Tribunal is excluded from this settlement.
In the event that the aforementioned Claim No. 382 is not included in the settlement, the amount of $125,000 deposited in the Kaplan Russin & Vecchi trust account shall immediately be paid to Behring and nothing contained in this memorandum of agreement shall affect the rights of the parties in Claim No. 382, supra.
5. The Agreement memorialized herein is solely for the benefit of the parties hereto and does not affect the rights of Iran against the United States of America under the Algiers Accords of January 19, 1981.
both Behring's and Iran's claims for specific performance were extinguished and the Tribunal's jurisdiction defeated with the execution of the November 7, 1979 Settlement Agreement... and the execution of a consent order on November 9, 1979 whereby both Iran and Behring agreed... that the United States District Court for the District of New Jersey would retain jurisdiction.
An international arbitral tribunal (the Iran-United States Claims Tribunal) is hereby established for the purpose of deciding claims of nationals of the United States against Iran and claims of nationals of Iran against the United States, and any counterclaim which arises out of the same contract, transaction or occurrence that constitutes the subject matter of that national's claim, if such claims and counterclaims are outstanding on the date of this Agreement [19 January 1981], whether or not filed with any court, and arise out of debts, contracts (including transactions which are the subject of letters of credit or bank guarantees), expropriations or other measures affecting property rights... and excluding claims arising under a binding contract between the parties specifically providing that any disputes thereunder shall be within the sole jurisdiction of the competent Iranian courts, in response to the Majlis position.
a corporation or other legal entity which is organized under the laws of... the United States or any of its states or territories, the District of Columbia or the Commonwealth of Puerto Rico, if, collectively, natural persons who are citizens of such country hold, directly or indirectly, an interest in such corporation or entity equivalent to 50 per cent or more of its capital stock.
It is the purpose of both parties, within the framework and pursuant to the... [General Declaration and Claims Settlement Declaration] to terminate all litigation as between the Government of each party and the nationals of the other, and to bring about the settlement and termination of all such claims through binding arbitration. Through the procedures provided in the... [Claims Settlement Declaration], the United States agrees to terminate all legal proceedings in United States courts involving claims of United States persons and institutions against Iran and its state enterprises, to nullify all attachments and judgments obtained therein, to prohibit all further litigation based on such claims, and to bring about the termination of such claims through binding arbitration. (Emphasis added.)
Behring will, within one week after payment of the $635,000.00 [into the Trust Account by IRIAF pursuant to paragraph 1] pay Arya National Shipping Lines the amount of their outstanding bills documented in accordance with FMC regulations for I.R.I.A.F. and I.A.C.I. shipments arising out of freight forwarding contracts between the parties and with respect to material handled by Behring....
Respondents' properties are stored under conditions wholly unsuited to the maintenance and preservation of the delicate electronic equipment, computers and aircraft spare parts... worth scores of millions of dollars. The properties are deteriorating rapidly, and the damages incurred by Respondents are irreparable, since some of the properties are irreplacable. In addition, there are now strong indications that some items of properties are missing from Claimant's warehouse. It is manifest now that the only reason Claimant seeks to retain custody of the properties is to use that custody as a leverage to extract from Respondents a total relinquishment of their counterclaims for losses incurred as a result of Claimant's neglience and wilful breach of its duties as a warehouseman.
At the request of either party, the arbitral tribunal may take any interim measures it deems necessary in respect of the subject-matter of the dispute, including measures for the conservation of the goods forming the subject-matter in dispute, such as ordering their deposit with a third person or the sale of perishable goods.
THE TRIBUNAL HEREBY AWARDS AS FOLLOWS:
1. The Tribunal decides that it has jurisdiction over the Claim and over Respondents' two counterclaims for breach of the 1979 Settlement Agreement, including Respondents' supplemental counterclaim. The counterclaim for attorney's fees and costs incurred with respect to United States litigation is hereby dismissed, as is the counterclaim for unjustifiable collection of monies from the Trust Account insofar as it seeks recovery based on acts occurring after 19 January 1981.
2. The Tribunal orders Claimant to release and deliver to Respondents IRIAF and IACI all goods belonging to them at its Edison, New Jersey facility on or before the date forty-five (45) days from the date of this Award. If, however, before such date Claimant applies to a court of competent jurisdiction within the United States to establish measures protecting Claimant's security interest, if any, in such goods, such release and delivery, and the date thereof, shall be subject to such reasonable conditions not in conflict with this Award as such court may impose to that end.
3. A surveyor or other representative of Claimant's insurance carrier shall be permitted to be present at Claimant's Edison, New Jersey facility during the release and delivery of the goods provided for in paragraph 2 above.
4. The Tribunal confirms provisionally Respondents' undertaking, as contained in paragraph 12 of the 1979 Settlement Agreement, to indemnify Claimant against vendor claims, as a condition of said Respondents taking delivery of their goods as set forth in paragraph 2 above.
5. The Tribunal orders that the expert shall postpone commencement of his work until such time as (a) the release and delivery to Respondents called for by paragraph 2 above has been completed, and (b) the remaining $35,000 deposit for the expert's work owed by Respondents pursuant to the Tribunal's Interim Award of 22 February 1985, as confirmed by its Order of 16 April, 1985, is paid in full.
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