As noted, Iran did not specify how much of the total U.S.$860,857.33 sought on its claims for monitoring expenses and unallocated litigation costs relates to monitoring expenses. Nor did it specify which aspects of its evidence support its claim for monitoring expenses.7
I cannot understand why this accurate observation is not the end of the matter. Completely apart from questions of proof, Iran has not seen fit to put a value on its claim for monitoring expenses. Instead, Iran has made a claim for what it calls "general litigation expenses," which are expenses that cannot be allocated to specific cases and are to be distinguished from specific expenses, which can be so allocated (discussed at Paragraphs 194-96 of the Award). Iran describes these "general litigation expenses" in its General Brief as follows:
In addition to the expenses specifically charged in cases litigated before U.S. courts, there are also some general litigation costs paid to U.S. law firms for the post-19 July 1981 period. These expenses, being of general nature, cannot naturally be specifically allocated to the cases at issue. The general costs comprise of costs of U.S. court participation, as referred to in the IDs, and monitoring.8
As an initial matter, unlike with respect to the substantiation of Iran's specific litigation expenses, Partial Award No. 590 has established no rigorous standard of proof with respect to the substantiation of Iran's monitoring expenses.
To be sure, Partial Award 590 established a different standard of proof for monitoring expenses than it did for specific litigation expenses, and the Majority quotes that standard in Paragraph 214. It will be useful to have that standard in mind as this discussion proceeds: "The Tribunal... expects Iran to produce factual evidence of the losses it suffered as a result of the monitoring of the suspended claims."9 So, what we need to see in the Majority's explanation of this part the Award is factual evidence of losses suffered by Iran as a result of the monitoring of suspended claims.
Iran has submitted contemporaneous evidence showing that, during the period here relevant, Shack & Kimball provided to Iran, among others, services relating to: (i) United States court litigation that was the subject of the United States' termination obligation, including monitoring of suspended claims; (ii) United States court litigation that was not the subject of the United States' termination obligation; (iii) litigation before the Tribunal; and (iv) the return to Iran of Iranian assets located in the United States. Further, it is undisputed that Iran made payments to Shack & Kimball for services rendered.
The only authority cited for the four categories of evidence described in this paragraph appears at footnote 226, which reads as follows:
For example, in a telex Mr. Shack sent to Iran on 4 November 1981, itemizing "the amounts due to Shack and Kimball for legal services rendered to the Islamic Republic of Iran as general counsel in matters of litigation, return of assets, and general representat[i]on," he advised Iran that, during the period July-November 1981, Shack & Kimball billed Iran a total of U.S.$427,397.47 for services rendered as general counsel.10
PURSUANT TO YOUR TLX OF NOVEMBER 1, 1981, THE FOLLOWING IS AN ITEMIZATION OF THE AMOUNTS DUE TO SHACK AND KIMBALL FOR LEGAL SERVICES RENDERED TO THE ISLAMIC REPUBLIC OF IRAN AS GENERAL COUNSEL IN MATTERS OF LITIGATION, RETURN OF ASSETS, AND GENERAL REPRESENTATION.11
There then follows a list, by month, of fees billed and paid. Nothing in the telex refers to monitoring services, and nothing in the telex refers to any specific case or cases, be they suspended or otherwise. Thus nothing in the telex provides any basis for concluding either that Shack & Kimball performed monitoring services or, if it did, that any such services related to suspended cases. It plainly does not constitute "factual evidence of the losses [Iran] suffered as a result of the monitoring of suspended claims," which is the evidence required by Partial Award 590.12
Iran, however, has not submitted any contemporaneous or other adequate evidence that would allow the Tribunal to determine the precise extent of Shack & Kimball's monitoring activities or, even less, how much Iran paid Shack & Kimball specifically for monitoring activities rather than other activities performed by the firm.
This statement may fairly be characterized as a misleading description of Iran's evidence because the Majority has described no evidence whatsoever that says anything about even whether, much less to what extent, Shack & Kimball provided monitoring services to Iran with respect to suspended cases.
As noted, in the present Cases, while Iran has proven the fact that Shack & Kimball provided monitoring services to it, it has not proven the precise extent and value of those services. The lack of conclusive evidence on these points therefore makes it impossible for the Tribunal to determine the precise extent of the losses that Iran has suffered. Consistent with the principles set forth above, however, 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.
One is left to wonder just where it is that "Iran has proven the fact that Shack & Kimball provided monitoring services," and just why the Majority takes it as "given that Iran has proven the fact of its losses." No authority is offered for either statement, so one is left to refer back to the paragraphs just discussed, where one is reminded that the only evidence cited by the Majority is a telex from Mr. Shack that says nothing whatsoever about monitoring activities. The Majority refers to not the slightest "factual evidence of the losses [Iran] suffered as a result of the monitoring of suspended claims" yet takes it as "given that Iran has proved the fact of its losses."
The Algiers Declarations oblige the United States to terminate all legal proceedings initiated by United States nationals against Iran in United States courts involving claims that arguably fall within the Tribunal's jurisdiction.19
If... the Tribunal concludes that Iran was reasonably compelled in the prudent defense of its interests to make appearances or file documents in United States courts subsequent to 19 July 1981 in any litigation in respect of claims described in Article II, paragraph 1, of the Claims Settlement Declaration or in respect of claims filed with the Tribunal until such time as those claims are dismissed by the Tribunal for lack of jurisdiction, then the Tribunal will find that the United States has not complied with its obligations under General Principle B of the General Declaration and Article I and Article VII, paragraph 2, of the Claims Settlement Declaration.20
"[C]laims described in Article II, paragraph 1 the Claims Settlement Declaration," of course, are claims over which this Tribunal actually has jurisdiction. Thus, I would have read Paragraphs 214 A (a)(2) and (3) together and applied a standard that is based on the Algiers Declarations and that does not expand the obligations imposed on the United States by those Declarations.
an essential element of [its] decision of Claim A and reflects the fact that (i) only the Tribunal has the power to determine whether it has jurisdiction over a claims; and (ii) the United States, when implementing its obligation to terminate litigation, could not know in advance the claims over which the Tribunal ultimately would take jurisdiction.24
(a) $1,150,000 shall be paid upon the execution of this Agreement; and
(b) $50,000 shall be placed in escrow (pursuant to an escrow agreement to be executed) with the firm of Rogers & Wells, New York, New York, and shall be remitted to Marriott upon the satisfactory performance of their obligations pursuant to Paragraph 6.31
Marriott will correct or cause to be corrected, at no additional cost to Owner [the Pahlavi/Alavi Foundation], any errors or omissions in the plans and specifications... if written notice of such errors and omissions is given by Owner to Marriott within one hundred and fifty (150) days from the date of this Agreement.32
If you [Rogers & Wells] have been advised by the [Pahlavi/Alavi] Foundation and Marriott, that Marriott has not fulfilled its obligations in accordance with paragraph 6 of the Agreement [the 13 December 1977 contract] you shall deliver said funds to the Foundation. If Marriott performs its obligations in accordance with the terms of paragraph 6, you shall, upon written notice from Marriott and the [Pahlavi/Alavi] Foundation, deliver said funds to Marriott.34
280. Under the applicable New York law, title remains in the person depositing the property into escrow (the depositor) until the conditions of the escrow agreement are fulfilled. [Citing four cases.] Where there is a dispute, until a competent forum determines, with retroactive effect, whether the conditions of the escrow agreement have been met, title to the property in escrow must be presumed to have remained with the depositor. With respect to the dispute between Marriott and the Foundation underlying the Marriott lawsuit, however, by 19 January 1982, the Tribunal, the only forum competent under the Algiers Declarations to resolve that dispute and, in that context, to determine whether the conditions in the Escrow Agreement for the release of the U.S.$50,000 to Marriott had been satisfied, was no longer available. In this situation, but for the 1981 decision of the Appellate Division, the escrow funds would have remained the property of the Foundation, the original depositor of the fund. The 28 April 1981 decision of the Appellate Division and the 5 May 1981 Order, which directed Rogers & Wells to release the escrow funds to Marriott, effectively deprived the Foundation of the money to which, in the circumstances, but for these decisions, it would have continued to hold title. The Tribunal awards Iran compensation for the Foundation's loss of title to those funds, which title, had the United States vacated the 28 April 1981 decision of the Appellate Division and the 5 May 1981 Order, the Foundation would have retained. [Footnote 303, noted here, follows.] The Tribunal thus does not conclude that the Foundation was entitled to receive the escrow funds.
Simply put, the Majority's award of $50,000 to Iran in this case rests entirely on a glaring non-sequitur. I outline below the Majority's chain of logic, sentence-by-sentence, as set forth in Paragraph 280 (all italics in quotations are added).
A. Under New York law, "title to escrow property remains in the person depositing the property into escrow (the depositor) until the conditions of the escrow agreement are fulfilled." (I believe this to be an accurate statement of the law.)
B. "Where there is a dispute, until a competent forum determines, with retroactive effect, whether the conditions of the escrow agreement have been met, title to the property in escrow must be presumed to have remained with the depositor." (I believe that this statement is incorrect, but assume that it is correct for purposes of this discussion.)
C. "With respect to the dispute between Marriott and the Foundation underlying the Marriott lawsuit, however, by 19 January 1982, the Tribunal, the only forum competent under the Algiers Declarations to resolve that dispute and, in that context, to determine whether the conditions in the Escrow Agreement for the release of the U.S.$50,000 to Marriott had been satisfied, was no longer available. (This statement is not true. Iran could have invoked the aid of this Tribunal after 19 January 1982 by bringing a claim for the return of the escrow funds under Paragraph 8 of the General Declaration. Moreover, the Majority all but admits that this statement is false in footnote 302 of the Award, but the untruth of this statement does not matter for purposes of the present analysis.)
D. "In this situation, but for the 1981 decision of the Appellate Division, the escrow funds would have remained the property of the Foundation, the original depositor of the fund. The 28 April 1981 decision of the Appellate Division and the 5 May 1981 Order, which directed Rogers & Wells to release the escrow funds to Marriott, effectively deprived the Foundation of the money to which, in the circumstances, but for these decisions, it would have continued to hold title. The Tribunal awards Iran compensation for the Foundation's loss of title to those funds, which title, had the United States vacated the 28 April 1981 decision of the Appellate Division and the 5 May 1981 Order, the Foundation would have retained." (My analysis is below.)
E. "The Tribunal thus does not conclude that the Foundation was entitled to receive the escrow funds."
The Tribunal has considered the argument that Iran could have chosen to bring a claim against the United States before the Tribunal under Paragraph 8 of the General Declaration. While it may be correct that Iran could have chosen to do so, Iran's actual choice to bring this Claim H under General Principle B was an equally legitimate course of action: a breach of the General Principle B obligation had occurred and a loss had been caused.
This footnote does nothing more than enable the Majority to say that they did not ignore the single most important factual (as opposed to logical) error in this part of the Award, which is their assertion in Paragraph 280 that, after 19 January 1982, this Tribunal "was no longer available" "to determine whether the conditions in the Escrow Agreement for the release of the U.S.$50,000 to Marriott had been satisfied." Footnote 302 says, almost in so many words, that the statement in Paragraph 280 is untrue, that Iran could have brought a claim against the United States in this Tribunal under Paragraph 8, but that this fact does not matter, and it does not matter because it was "equally legitimate" for Iran to choose to bring a claim against the United States under General Principle B rather than a claim against the United States under Paragraph 8.
Only if one were to reach the conclusion that both tortious (or obligationbreaching) and non-tortious (or obligation-compliant) conduct of the same person would have led to the same result, one might question that the tortious (or obligation-breaching) conduct was condicio sine qua non of the loss the claimant seeks to recover.46
The Majority goes astray, however, in the next sentence of Paragraph 52:
Conversely, if a third party's conduct (here the Rajis' subsequent proceeding on the basis of an amendment of claim) in an alternative and hypothetical scenario had caused Iran to incur the same expenses, this would be a different scenario, distinguishable in point of time, mode, detail of occurrence, and, importantly, the acting person.47
In this sentence the Majority makes two analytical mistakes which then lead them to rely on three inapposite examples and thus to the wrong conclusion.
But suppose that the pedestrian ran into the path of the car suddenly, and that the driver, if he had kept a lookout could have swerved, but not enough to avoid impact with serious injuries.... If the parallel series in this case is constructed in minute detail, it shows that the injuries would have been at least slightly different and would have been inflicted by different parts of the car if the driver had swerved.... Hence, the conclusion from a rigorous and detailed application of our assumptions must be that the omission was a cause of the injuries actually suffered, even though the driver could not have avoided a substantial impact by keeping a lookout.57
(a) Operating within our usual assumptions, one could hold that the omission of lookout was a hypothetical cause of the harm, but could limit liability on the ground that the defendant could not have avoided substantial harm by supplying his omission.... [or] (b) By holding the injuries that happened to be substantially the same as those that would have happened, one could conclude that the omission of lookout was not a cause.58
After noting that they prefer the second line of reasoning to the first, because it conforms with"[p]opular opinion, both of laymen and lawyers," they state the following conclusion:
We would, accordingly, compare as carefully as possible the injuries that happened with those that would have happened, and if we found enough similarity or enough chance of similarity, would disregard minor differences, and conclude that the omission was not a cause.59
The Tribunal accepts that the District Court acted in conformity with the United States' international obligations by dismissing the Hoffman lawsuit without prejudice in 1981, pending the decision by the Tribunal. However, the United States breached its international obligations by not causing the Hoffman lawsuit to be dismissed with prejudice after the Tribunal's decision of 27 July 1983. In accordance with its conclusion in Partial Award No. 590, the Tribunal holds that, by failing to terminate the Hoffman lawsuit within a reasonable time after 27 July 1983, the date of the Tribunal's interlocutory award in Gould Marketing assuming jurisdiction over certain claims by Gould Marketing, the United States violated its obligation to terminate litigation in United States courts related to claims resolved by the Tribunal on the merits.
The claim underlying the original Hoffman lawsuit in the District Court, which was filed on 13 February 1980... did not, and could not, cover matters to arise after 19 January 1981, as those matters had not materialized yet; thus, the claim pending before the District Court at that time was entirely within the Tribunal's jurisdiction and should have been terminated in its entirety.
That the original Hoffman/Gould lawsuit did not cover post-January 1981 matters can only be a presumption because the original Hoffman/Gould complaint is not in the record. The only support cited for this presumption is language from Hoffman's motion to amend its complaint70 (quoted by the Majority in Paragraph 90) stating that the original complaint did not "reflect the continued breaches of the radio contract by Iran that have occurred since the original complaint was filed."
Here, plaintiff seeks to amend to reflect the parties' name changes, to reflect the relevant proceedings involving the parties that have occurred since the original complaint was filed, and to reflect the continued breaches of the radio contract by Iran that have occurred since the original complaint was filed.
All of the claims in the amended complaint arise from the same contract as the claims in the original complaint. There are no new factual allegations or causes of action in the amended complaint that plaintiff has not already served on Iran, and that Iran has not already answered, either in this proceeding or in the enforcement action.71
Betraying an awareness that they did not know what the original complaint actually covered, the Majority's statement also asserts that the original complaint "could not  cover matters to arise after 19 January 1981" (italics added). This assertion is plainly wishful thinking rather than any exercise in logic.
The issue at stake is whether the United States was in breach of its international obligations and not whether Hoffman/Gould amended an existing claim or could have started a new claim. If Hoffman/Gould had brought a new lawsuit, that action would - as in the Raji case - fall into the category of the examples mentioned above (garage burning down, airplane crash...) in that the same result followed from a non-tortious act or obligation-compliant conduct. As has been acknowledged by authoritative commentators, one may categorize these examples as illustrations of disapplying the sine qua non formula. Yet, the reasons underlying the distinction between "factual" and "legal" cause, "proximate" and "remote" damages, and the development of the theory of "adequacy" show that courts and legal theory universally strive to avoid mechanical application of the relevant tests in favor of normative approaches. That is why focusing on the defendant and its obligation-compliant, as opposed to its non-compliant, conduct is crucial. Hoffman/Gould (as was Mrs. Raji in the Raji case) is a third party. What is at stake here, however, is the omission of the United States in relation to Hoffman/Gould's (or in the Raji case, Mrs. Raji's) procedural maneuvers. To refer to the example from the Separate Opinion, relevant is, not whether the court house had two doors, but whether the United States breached its international obligations by allowing Hoffman/Gould to use the "amended complaint" door. Further, that Hoffman/Gould could have filed a new claim does not mean that it certainly would have done so. The latter scenario is conjecture, no matter how strongly one believes that it likely would have materialized. Had the United States caused the Hoffman lawsuit to be dismissed with prejudice, Hoffman/Gould could just as well have decided not to pursue the matter further.
A. The Majority awards Iran $70,000 for Shack & Kimball monitoring costs even though Iran never even made a claim for monitoring costs, as opposed to "general litigation expenses," labeling it "grossly unfair" to deny Iran any recovery for monitoring costs.94
B. The Majority reclassified as "monitoring costs" costs classified by Iran as specific litigation expenses even though Iran never asked that this be done, observing that "it would be inequitable for the Tribunal, on that ground, outright to dismiss Iran's claim for such costs."95
C. The Majority bases its conclusions with respect to the Marriott escrow funds, in part, on its conclusions concerning New York law relating to escrows even though neither party ever mentioned New York escrow law. Indeed, I believe one will search the Parties' briefs in vain for any mention of any part of the reasoning that appears in Paragraph 279 concerning the Marriott escrow funds.
It is more than a little disturbing that the Majority is comfortable holding the United States liable for the Jafari litigation costs even though it is clear that in this case the United States did everything that it was required to do, and did it promptly.
[T]he circumstances surrounding Iran's actions are important. Viewed in light of the fact that the suspension mechanism established by Executive Order 12294 did not purport to do exactly what the Algiers Declarations required -"terminate" legal proceedings - Iran's actions in seeking to have the Saghi lawsuit dismissed cannot be seen as imprudent.
This rationale cannot support the weight that the Majority places on it. This Tribunal, when drafting Partial Award No. 590, knew that the suspension mechanism did not purport to do exactly what the Algiers Declarations required - and it was on that basis that the Tribunal found the U.S. had violated its termination obligation by permitting the filing of tolling suits. Nevertheless, Partial Award No. 590 states that Iran may be compensated only for losses suffered in such suits "as a result of its making appearances or filing documents in United States courts subsequent to 19 January 1981 in the prudent defense of its interests."107 If Iran's actions in Saghi were "prudent," it cannot be for the reason given in the Award.
Iran also unsuccessfully attempted to stop the sale in the context of the litigation instituted by Behring against it in the District Court. On 5 August 1983, Iran petitioned the District Court for a temporary restraining order and preliminary injunction against Behring's proposed sale. The District Court denied Iran's motion on 10 August 1983.113
The Tribunal then proceeds to make the following finding and holding:
The Tribunal finds that the United States court proceedings before the District Court, to the extent they involved pre-19 January 1981 storage costs, were subject to the United States termination of litigation obligation under the Algiers Declarations. The subject matter of the claim meets the relevant temporal jurisdiction requirements, and proceedings had been instituted at the Tribunal in respect of the claim. Thus, the Tribunal holds that the District Court was obliged to halt the preliminary injunction proceedings in the Behring lawsuit, and put the sale on hold, while parallel interim order proceedings were pending before the Tribunal. By failing to do so, the District Court failed to respect the primacy of the Tribunal's jurisdiction and the Tribunal's interim award of 10 August 1983.114
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