"If the only evidence which could be adduced were that directly of facts in issue, or direct evidence, many claims would fail for lack of adequate proof. At some stage, resort almost always has to be had to 'circumstantial evidence' which may be defined as any fact (sometimes called an 'evidentiary fact', 'factum probans' or 'fact relevant to the issue') from the existence of which the judge or jury may infer the existence of a fact in issue (sometimes called 'principal fact' or 'factum probandum')"4
"Of course the Trust Deeds would, if produced, constitute what is known in Common Law parlance as the 'best' evidence, and unless they could be shown to have been lost or destroyed, it is unlikely that a municipal court would admit secondary evidence of their contents. International tribunals are not tied by such firm rules, however, many of which are not appropriate to litigation between governments."7
i. It is well-established in international law that difficulties in calculating damages should not deprive a claimant whose interests have been injured from obtaining compensation. (Para. 230)
ii. It is also well-established in the jurisprudence of this Tribunal that, when circumstances make it difficult or impossible to precisely quantify compensation, the Tribunal may exercise its discretion to determine equitably the amount involved. (Para. 231)
iii. The Tribunal has a wide margin of appreciation to make reasonable approximations. (Ibid.)
iv. It is undisputed that at a certain point the Shack & Kimball invoices and billing documents were in the possession of, or at least available to, Iran. (Para. 154)
v. Iran has proven the fact that Shack & Kimball provided monitoring services to it. (Para. 232)
vi. Iran has not proven the precise extent and value of those services. (Ibid.)
vii. Given that Iran has proven the fact of its losses, its failure to prove their exact extent should not preclude it from recovering damages altogether. (Ibid.)
viii. The Tribunal is persuaded that Shack & Kimball spent a significant amount of time on the monitoring of suspended claims before as well as after 19 July 1981. (Para. 235)
ix. Contemporaneous evidence shows that, between July and November 1981, Shack & Kimball had billed Iran a total of U.S.$427,397.47 for services rendered as general counsel. (Ibid.)
x. Shack & Kimball continued to provide legal services to Iran after that date. (Ibid.)
xi. It is further undisputed that that Iran paid Shack & Kimball invoices for services rendered. (Ibid.)
- The performance of the services,
- The necessity of such performance,
- The payment of the amounts due,
- The existence of the direct documentation,
- Direct link between the loss and the breach of obligation.
What are lacking are the precise extent of the services31 and the submission of the so-called "primary documentation."32 However, these shortcomings should be seen in light of the fact that the person who had performed those services and had produced the documentation in the first place, submitted two detailed affidavits, a detailed settlement agreement concerning the very services at issue here, has appeared before the Tribunal and has undergone cross-examination and questioning under oath. In view of all those findings and conclusions, and in view of the Tribunal's precedent as well as the jurisprudence of other arbitral bodies, we believe the figure awarded here as a result of the approximation does not do justice to the Claim.
"It is clear from General Principle B and from Articles I and II of the Claims Settlement Declaration that claims that would have been within the jurisdiction of the Tribunal and were not settled by negotiation were to be presented to the Tribunal, and that if a claimant chose not to present such a claim to the Tribunal, he was not to be permitted thereafter to raise it in United States courts. Although the existence of the Security Account ensured that the vast majority of claims deemed meritorious by claimants would be presented to the Tribunal, the Tribunal does not doubt that there were some claims not filed with the Tribunal because of concern by the claimants about possible counterclaims by Iran. By including Section 6 in the Executive Order, the United States, in effect, encouraged such claimants not to come to the Tribunal, and thus failed to comply with its obligations under General Principle B and Article I of the Claims Settlement Declaration."39
"The Tribunal is satisfied on the basis of the Claimant's presentation at the Hearing that in seeking injunctive relief in the United States courts the Claimant incurred damages in the amount of $50,000 for corporate legal expenses claimed as part of the $193,000 for 'legal support' under the heading 'termination expenses,' and $510,550.13 for outside legal costs totaling $560,550.13."45
Moreover, during the hearings of the present Cases, the Claimant referred to NAFTA arbitration procedure under UNCITRAL Rules where the United States demanded costs incurred by the legal staff of the State Department.46 The situation is very much similar to what exists here in these Cases.
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