(1)  Burden of proof–Article 24(1)

Legal rules and principles concerning the presentation of evidence aim at establishing relevant facts.¹¹ According to Article 24(1), “[e]ach party shall have the burden of proving the facts relied on to support his claim or defence.”

This provision was added to the Rules at the very final stage of the drafting process. No thorough discussion of the subject is recorded in the available travaux préparatoires.¹² Nevertheless, it is clear that the provision is simply a restatement of “the general principle that each party has the burden of proving the facts on which he relied in his claim or in his defence,”¹³ else risk an adverse decision.¹⁴ Article 24(1) therefore scarcely represents a modification of pre–existing principles.¹⁵ Nor does the provision, though limited to the question of burden of proof as to the asserted facts, alter the standard rule that the claimant has the burden of demonstrating the legal obligation on which its claim is based.¹⁶

As to the division of the burden of proof between the parties, the general principle was expressed by the Tribunal in Reza Said Malek as follows: “it is (p. 569) the Claimant who carries the initial burden of proving the facts upon which he relies. There is a point, however, at which the Claimant may be considered to have made a sufficient showing to shift the burden of proof to the Respondent.”¹⁷

Article 24(1), however, does not address the standard of proof, that is, the level, or degree, of proof required to satisfy the burden mentioned in Reza Said Malek. Moreover, Article 25(6) gives the arbitral tribunal wide discretion to determine freely, inter alia, the “weight of the evidence offered” in particular cases.¹⁸ Rules on proof and evidence in the arbitral (or for that matter judicial) process do not envisage a search for absolute, unchallengeable proof as a scientific matter. Very often such proof is unattainable¹⁹ and the decision is left to the sometimes subjective judgment of the arbitrators.²⁰ Thus, understandably, individual arbitrators may frequently reach contrary conclusions on the question of proof, as has been the case in the practice of the Iran-US Claims Tribunal.²¹ In contrast, where the types of claims alleged were of a serious or criminal nature, i.e., forgery of documents, the Tribunal has at times agreed to apply a heightened standard of proof, such as “clear and convincing” or “beyond a reasonable doubt.”²²

(p. 570) The dissenting or concurring American judges seemed in some cases to argue that, due to the special nature of the arbitration in question,²³ prima facie evidence submitted by the claimant is generally sufficient to shift the burden of proof onto the respondent.²⁴ The main awards, however, have not adopted a general assumption of this kind. Nevertheless, in some circumstances prima facie evidence clearly was regarded as sufficient to satisfy the initial burden of proof.²⁵

Thus, the Tribunal practice does not support the proposition that a claimant would have to prove its case beyond all reasonable doubt. No such proposition is expressed by Article 24(1). The standard of proof rather varies according to the circumstances. Notorious facts do not need any proof at all,²⁶ and uncontested facts are usually accepted as such.²⁷

While in contested cases, it may be said that at least prima facie proof is needed,²⁸ such proof alone may fail to satisfy the burden of proof. This is the case where the claimant has access to confirming evidence but fails to provide it.²⁹ Conversely, a prima facie case made by the claimant will often suffice provided that the respondent has access to any rebutting evidence which is not produced.³⁰ The obvious difficulty which the applicant may have in trying to obtain corroborative evidence should be taken into account in the (p. 571) assessment whether prima facie evidence is sufficient.³¹ Prima facie proof may also suffice where the experience of the tribunal leads it to conclude that the evidence indicates the probable existence of a certain state of affairs. International tribunals have in fact relied strongly on such presumptions.³² A good example is provided by the evidentiary issue of the nationality of publicly–held US corporations appearing as claimants before the Iran-US Claims Tribunal. In the practice of the Tribunal, a publicly–held US corporation has only to provide prima facie evidence of the kind defined in the oft–cited Flexi–Van order. Such evidence, if not successfully rebutted by the respondent, is taken as sufficient proof of the corporation's US nationality in the meaning of Article VII(l) of the Claims Settlement Declaration.³³

In addition to the statistical likelihoods involved in the Flexi–Van case, the testimony offered by customary trade practices may lend qualifying support to evidence which otherwise fails to meet the “reasonable doubt” standard. Hence the contemporary approval of invoices has been held to constitute a prima facie claim for the amount at issue, shifting the burden onto the respondent to show “that such approval was erroneous.”³⁴ Similarly, “contemporaneous books and records of a company regularly kept in the normal course of business should be accorded substantial evidentiary weight.”³⁵ In some cases, presumptions of this kind are based neither on statistical nor on other experience, and therefore more than prima facie evidence in the above (p. 572) sense may be needed. In this light, we may understand the reference to the burden of proof difficulties facing the claimant who alleged lost profits as a “lost volume seller” in the CMI case.³⁶

A different, though related, matter is that sometimes the applicable substantive law may create legal presumptions concerning fault or liability, etc;³⁷ Article 24(1) of the UNCITRAL Rules quite clearly leaves intact presumptions of this kind, which do not affect the general principle of burden of proof stated therein.

That “there has been relatively little discussion of precisely what the proper burden of proof should be and on whom it should rest”³⁸ is thus at least in part explained by the fact that very precise general rules regarding this problem are difficult to formulate. There may be certain categories of cases or circumstances in which prima facie evidence is sufficient to shift the onus to the respondent. There are others, however, in which the claimant may be required to make more than just a prima facie showing. In general, a “balance of probability” standard may be said to reflect the arbitral practice and also to accord with Article 24(1).³⁹ In borderline cases the arbitral tribunal may, instead of dismissing the claim straight away, provide the party having the burden of proof with an opportunity to submit further evidence.⁴⁰

Matters closely related to the question of the burden of proof are discussed further in Chapter 17 in connection with Article 25(6).

(2)  Summary of evidence to be delivered to the arbitral tribunal and the other party–Article 24(2)

Article 24(2), like Article 24(1), was added to the UNCITRAL Rules by the Committee of the Whole II at the very final stage of the drafting process. The Committee agreed that “in order to prevent surprise at hearings the arbitral tribunal may require delivery in advance to the other party and to the arbitral tribunal of a summary of the documents and other evidence which a party intends to present.”⁴¹ Article 24(2) both emphasizes the active role (p. 573) which the arbitral tribunal may take⁴² and reflects the practice common in international proceedings in general of providing for advance notice of evidence.⁴³

Under the Rules the submission of notice in the form of “a summary of documents and other evidence” is not obligatory unless the arbitral tribunal so rules.⁴⁴ Very often, however, the tribunal will require such a summary, deeming it appropriate to ensure fair treatment of the parties and conducive to orderly proceedings. As regards documentary evidence, the tribunal is well advised to order the submission of the documents themselves, in addition to a summary, well ahead of the hearing. This has been the practice of the Iran-US Claims Tribunal.⁴⁵

As argued above,⁴⁶ the submission of documentary evidence should preferably be combined with the submission of written statements. If the tribunal orders a second (or third) round of written statements (e.g. in the form of a hearing memorial), it may order the simultaneous submission of documentary evidence together with the summary of all the evidence, or the remainder of the evidence to be relied upon.⁴⁷

The arbitral tribunal may in some circumstances consider it appropriate to order the parties to submit the summary of the evidence to be produced at the hearing after the exchange of written statements. In such cases the submission of the summary can be combined with the submission of the witness information, referred to in Article 25(2).⁴⁸

Particularly where the record of the case is likely to be voluminous, the arbitral tribunal can make the location of each document easier by ordering the parties to number them consecutively.⁴⁹ The parties themselves can contribute to efficient proceedings by using tabs, documents with colored covers, and similar means by which the identification of a document is facilitated.⁵⁰

As discussed previously, Articles 18 and 19 of the UNCITRAL Rules allow the claimant or respondent to annex “all documents he deems relevant” or to (p. 574) “add a reference to the documents or other evidence he will submit” at as early a stage as the presentation of the statement of claim or statement of defence.⁵¹

(3)  Production of documents–Article 24(3)

(1)  Tribunal Rules, Article 24(1)

The Respondent in its Statement of Defence challenges the jurisdiction of the Tribunal on the ground, inter alia, that the Claimant has not presented evidence to prove that it is a national of the United States which has owned the claim continuously from the time it arose until January 19, 1981, as required by Article VII, Paragraph 1 and 2 of the Claims Settlement Declaration.

Questions thus arise in this case–and in many other cases before this Chamber–concerning what evidence is to be presented by a Claimant

1. (a)  That a parent corporation is a national of the United States;

2. (b)  That a subsidiary corporation is a national of the United States; and

3. (c)  That a claim has been owned by a national of the United States continuously from the time it arose until January 19, 1981.

In these circumstances, it must be recognized that it is neither possible nor necessary to require submission, as the Respondent proposes, of detailed evidence such as either passports, birth certificates or certified copies of naturalization documents for each of the thousands of individuals who collectively own, directly or indirectly, more than 50% of the capital stock of Flexi–Van Corporation. Also, it is not practical to adopt the suggestion of the Respondent to require submission of voluminous lists of the names and addresses of all shareholders, particularly because the identity of shareholders of United States publicly–traded corporations is safeguarded to protect confidentiality.

Any such requirements as Respondent proposes, would impose excessive burdens on the Parties and the Tribunal. The burden on the Claimant would be to attempt to gather such evidence, much of which is not in its possession; the burden on the Respondent would be to review it; and the burden on the Tribunal would be to receive and evaluate it. It is not possible for the Tribunal to estimate the amount of time which would be needed by the Parties and itself to accomplish such tasks, but it is likely that any such requirement would significantly delay the arbitral proceedings in this and many other cases.

Other Tribunals which have adjudicated international claims in the past have also faced similar problems. They have required what they considered to be sufficient evidence and from that have drawn reasonable inferences. See, e.g. Mexican–United States General Claims Commission, Foreign Claims Settlement Commission of the United States. A Respondent is, of course, always free to produce evidence in rebuttal. (p. 581) However, as the Mexican United States General Claims Commission held:

[W]hen the claimant has established a prima facie case and Respondent has offered no evidence in rebuttal, the latter may not insist that the former pile up evidence to establish its allegations beyond a reasonable doubt without pointing out some reason for doubting.

Parker Case, 4 R. Int'l Arb. Awards 39 (1926). The same principle was followed by the French–Mexican Claims Commission which determined that an international arbitral tribunal in determining nationality may apply less strict requirements where it does not appear to be reasonably necessary to set in motion the entire process of formal proofs. Pinson Case, 5 R. Int'l Arb. Awards 327 (1928).

The type of evidence to be submitted by a Claimant depends on the circumstances of each particular case, as viewed by the Chamber. In this case, the evidence described below will, prima facie, be considered sufficient as to corporate nationality. Such evidence is in the form of documents officially filed with governmental agencies or is from an independent certified public accountant. Respondent will be free to offer rebuttal evidence. From the totality of such evidence the Chamber will draw reasonable inferences and reach conclusions as to whether the Claimant was, or was not, a national of the United States, as defined in the Declaration, during the necessary period. It is within the power of the Chamber to do this based on accepted principles of international law and also upon the Provisionally Adopted Tribunal Rules which state that:

The arbitral tribunal shall determine the admissibility, relevance, materiality and weight of the evidence offered.

Article 25, Paragraph 6. Moreover, in view of the impracticality of any other course, this procedure is necessary to ensure that the Declaration can be carried out effectively. See Declaration, Article III, Paragraph 2.

Flexi–Van Leasing Inc. and The Islamic Republic of Iran, Case No. 36, Chamber One, Order of 15 Dec 1982, reprinted in 1 Iran-US CTR, 455 (1981–82).

The Tribunal has copies of (a) the agreement of 10 January 1978 between Karayesh Co. and Isaiah for the purchase of beer abroad and its sale in Iran which allocates to Isaiah 25 per cent of the profits; (b) the (p. 582) agreement of 22 January 1978 appointing Farkash as Isaiah's representative to develop and manage the beer business in Iran, (c) Alikhani's letter of 3 November 1978 informing Isaiah that his share of profit to the end of October was $380,000; (d) Isaiah's letter to Alikhani of 18 December 1978 asking that the money be sent to Haim Farkash's account in Israel as soon as possible after the first of the year; (e) Alikhani's letter to Isaiah of 4 January 1979 saying that the check representing Isaiah's share of the profits had been purchased from the International Bank of Iran and had been given, as instructed, to Haim Farkash; and (f) Farkash's letter of 4 January 1979 informing Isaiah that he had received the money and would hold it in his account pending directions from Isaiah. These documents, buttressed by credible testimony at the Hearing, constitute a prima facie case that the money represented by the check was Isaiah's money and that he has held the claim for that money from the time the check was dishonored. In the absence of evidence to the contrary, that evidence is decisive.

Benjamin R Isaiah and Bank Mellat, Award No. 35–219–2 (30 Mar 1983) at 13, reprinted in 2 Iran-US CTR 232, 238–39 (1983–I).

Finally, the Navy has not produced any evidence in support of its contention that Pomeroy Corporation breached its duties under the Contract by failing to supply qualified personnel or failing to point out defects in the work of other contractors. By failing to establish even a prima facie case or contract breach, the Navy has not met its burden of proof on this defence, and it must be rejected.

RN Pomeroy and The Islamic Republic of Iran, Award No. 50–40–3 (8 Jun 1983) at 20, reprinted in 2 Iran-US CTR 372, 382 (1983–I).

In this case Mr. Dallal has chosen not to provide any further information regarding the transaction. His reticence to provide information about the character of the transaction cannot be sufficiently justified by his alleged concern for the safety of relatives and business connections in Iran, since it had been quite possible for him to give further details–e.g. regarding time and money spent by him for the project–without revealing the identity of his relatives and business connections.¹ The Tribunal therefore reaches the conclusion that the two cheques must be assumed to have been issued as part of a capital transfer, intended merely to exchange Rials for Dollars and to transfer the dollar amount to the United States. The Tribunal therefore concludes that it is unable to issue an award in favour of the Claimant.

(p. 583) Dallal and The Islamic Republic of Iran, Bank Mellat, Award No. 53–149–1 (10 Jun 1983) at 12, reprinted in 3 Iran-US CTR 10, 17 (1983–II).

The Claimant asserts that it is entitled to its lost profits in the amount of U.S. $1,427,608 on the two sales at issue in this case under the theory that it is a “lost volume” seller, that is, a seller whose capacity to sell exceeded the available market and who would have sold other, identical machines to the buyers who eventually bought the machines produced under the purchase orders breached by MORT. The argument is that such a seller would not be made whole merely by being compensated for any losses on resale and for incidental expenses or other damages, because its profits for the year would have been diminished by the profits on the one sale it had lost. While the Tribunal understands that argument, its application to the Claimant's case raises some difficult problems, including those of proof, and the burden of proving entitlement to lost profits as a lost–volume seller is on the Claimant. See, Article 24, paragraph 1 of the Tribunal Rules; J White & R Summers, Uniform Commercial Code section 7–13 (2d ed. 1980); Harris, “A Radical Restatement of the Law of Seller's Damages,” 18 Stanford Law Review 66, 81 (1965).

CMI International, Inc. and Ministry of Roads and Transportation and the Islamic Republic of Iran, Award No. 99–245–2 (27 Dec 1983) at 9–10, reprinted in 4 Iran-US CTR 263, 268 (1983–III).

In addition to the two drafts now dealt with, Claimant asserts that Bank Markazi rejected several additional drafts from Schering's Plough Division for at least U.S. $1,195,657,70, all of these drafts allegedly relating to purchase of raw materials from Essex and Schering's Plough Division. Respondent denies that Bank Markazi ever received requests for permission to have these additional drafts paid. In support of its allegations with regard to these drafts, Claimant relies on an affidavit by the Controller of Schering–Iran at the relevant time, Mr. Brownin; two internal company memos of 10 and 14 December 1979 signed by Mr. Brownin; and a chart of intercompany payables also drawn up by Mr. Browning. However, neither the request for permission, nor any bank correspondence or other similar documents reflecting the decisions allegedly taken by Bank Markazi with regard to the additional drafts have been submitted. In view of this, the Tribunal does not consider it (p. 584) clear from the evidence that requests for permission to transfer payments were submitted to Bank Markazi but were not dealt with or were rejected, by that bank–let alone which were the grounds for such rejections. The conclusion must therefore be that there is insufficient ground for holding the Government of Iran liable for any action or omission by Bank Markazi with regard to the intercompany debts now discussed.

Schering Corporation and The Islamic Republic of Iran, Award No. 122– 38–3 (16 Apr 1984) at 12–13, reprinted in 5 Iran-US CTR 361, 367–68 (1984–I).

The material submitted by Claimant at least constitutes prima facie evidence that the drafts were submitted. Claimant explained that the Workers' Council prevented Claimant from obtaining more evidence in Iran. A mere assertion that the drafts were not received cannot be deemed to be an adequate rebuttal. Indeed, the relevant Iranian banks should have records listing the submissions of drafts for foreign exchange transfers during the period in question; yet, they failed to produce them. Such records would likely indicate if the drafts in question were submitted or not.

Schering Corporation and The Islamic Republic of Iran, Award No. 122–38–3 (16 Apr 1984), Dissenting Opinion of Richard M Mosk (18 Apr 1984) at 5, reprinted in 5 Iran-US CTR 374, 376 (1984–I).

The Tribunal notes the absence of evidence supporting Claimant's ownership and control of South Gulf Trading and Shipping Company Ltd. The Tribunal further notes Claimant's explanation as to its inability to adduce such evidence. In view of the place of incorporation of the Company, the Tribunal believes that the Claimant should provide further explanation as to why evidence of ownership of the Company cannot be provided.

The Claimant is hereby ordered to provide such explanations no later than 1 June 1984.

George W Drucker Jr and Foreign Transaction Co., Case No. 121, Chamber Two, Order of 8 May 1984.

It has not been alleged that ITC objected within a reasonable time period to Reynolds' statement of account of 31 October 1979 or to the subsequent invoice of 9 November 1979. In fact, there is no evidence that these specific amounts were disputed until Claimant indicated that (p. 585) it intended to bring this claim before the Tribunal. In view of this, the burden is now on ITC to demonstrate any facts supporting its contention that U.S. $1,886,461.43 should be deducted from Claimant's claim. ITC, however, has not offered sufficient evidence on this point. See Time Incorporated and The Islamic Republic of Iran et. al., Award No. 139–166–2 (29 June 1984).

RJ Reynolds Tobacco Company and The Islamic Republic of Iran, Iranian Tobacco Company, Award No. 145–35–3 (6 Aug 1984) at 17, reprinted in 7 Iran-US CTR 181, 190 (1984–III).

The evidence in this case indicated that the invoices covering the months of July through November 1978 were approved by Danesheh Now with certain minor adjustments. The approved total of those five invoices was U.S. $235,047. This total was not, however, paid, apparently initially because of disruption of banking services caused by the Iranian revolution and then by a suspension of payment instructions on 10 March 1979 by the new management of Danesheh Now installed following the revolution. The approval of these invoices in the total amount noted above by the appropriate officials of Danesheh Now establishes a prima facie claim for that amount. In the absence of persuasive evidence that such approval was erroneous, the Tribunal holds that the claim for these invoices is valid and that the Respondent, Danesheh Now, therefore owes the Claimant U.S. $235,047.

Time Incorporated and The Islamic Republic of Iran, Award No. 139–166–2 (22 Jun 1984) at 4–5, reprinted in 7 Iran-US CTR 8, 10–11 (1984–III).

1. 92.  MORT objects to a sum of 238,080 Rials included in this invoice dated 23 May 1979, allegedly representing the salary and multiplier charges relating to one Gilian Ajanasian. MORT contends he was no longer employed during the period represented by the invoice.

2. 93.  The Claimant asserts that it no longer possesses a copy of the backup documentation submitted to MORT with Invoice No. 53. The Claimant contends that, as MORT has failed to submit copies of this documentation or other evidence in support of its position, its defence must fail.

3. 94.  The evidence indicates that after receiving the invoice MORT simply disapproved an amount for salaries without offering any explanation. MORT apparently did not notify the Claimant of the reason for its action until filing its Rejoinder with the Tribunal on (p. 586) 30 December 1982. Having delayed over three years in detailing its objection to a particular invoice item, MORT bears the burden of proving its justification. Having submitted neither the invoice backup documentation nor other evidence in support of its contention, MORT's defence must fail. Article 24, paragraph 1, of the Tribunal Rules. See also D Sandifer, Evidence Before International Tribunals 127 (rev. ed 1975). Therefore, the Tribunal finds that the amount objected to in Invoice No. 53, totalling 238,080 Rials, is payable.

Howard Needles Tammen & Bergendoff and The Islamic Republic of Iran, Award No. 244–68–2 (8 Aug 1986), reprinted in 11 Iran-US CTR 302, 327 (1986–II).

1. 73.  It is not disputed that TCI, initially, reimbursed the Claimant for social security premiums paid for employees working on the TCI contract. TCI argues that former TCI officials made these reimbursements erroneously. It now raises a Counterclaim for repayment of those reimbursements made in the amount of 3,551,700 Rials.

2. 74.  As stated in Article 24, paragraph l of the Tribunal Rules, TCI has the burden of proving the facts relied on that the Claimant was, in fact, not entitled to the reimbursements.

3. 75.  TCI, in principle, is bound by acts of its former officials, and the very fact that they made payments strongly suggests that the payments were made pursuant to an agreement between the Parties. The Respondent TCI, in any event, did not offer any evidence to support the allegation that its former officials acted erroneously. Consequently, the Counterclaim is dismissed for lack of evidence.

Arthur Young & Company and The Islamic Republic of Iran, Award No. 338–484–1 (30 Nov 1987), reprinted in 17 Iran-US CTR 245, 262–63 (1987–IV).

1. 33.  As to the events which are alleged to have preceded Mr. and Mrs. Daley's departure from Mehrabad Airport on 25 June 1979, Mr. Daley's evidence is detailed and convincing, though uncorroborated. The Tribunal is mindful, however, of the obvious difficulty in obtaining corroborative evidence from those who might have witnessed the events described.

(p. 587) Leonard and Mavis Daley, a claim less than US $250,000 presented by The United States of America and The Islamic Republic of Iran, Award No. 360–10514–1 (20 Apr 1988), reprinted in 18 Iran-US CTR 232, 242 (1988–I).

1. 111.  That being the case, the Tribunal believes the Claim for the Shemiran Properties is best decided by reference to Article 24, paragraph I of the Tribunal Rules according to which “[e]ach party shall have the burden of proving the facts relied on to support his claim of defence.” It goes without saying that it is the Claimant who carries the initial burden of proving the facts upon which he relies. There is a point, however, at which the Claimant may be considered to have made a sufficient showing to shift the burden of proof to the Respondent.

2. 112.  In considering whether the Parties have met their respective burdens of proof, the Tribunal is guided by the reflections of the late Professor Virally, former Member of the Tribunal and Chairman of Chamber Three as reflected in W. Jack Buckamier and Islamic Republic of Iran, et al., Award No. 528–941–3 para 67 (6 Mar 1992), reprinted in 28 Iran-U.S. C.T.R.

3. 123.  On balance, the Tribunal believes that the deficiencies in the Claimant's presentation concerning the date on which the Claim arose–an issue, which, in light of the jurisdictional parameters laid down in the Partial Award, is central to this Case–are too important to accept that the burden of proof with regard to the issue of whether the Parental Home was unreasonably interfered with between 5 November 1980 and 19 January 1981 has shifted to the Respondent. The Tribunal, therefore, believes that the Claim for the interest in the Parental Home also should be denied for lack of jurisdiction.

Reza Said Malek and The Islamic Republic of Iran, Award No. 534–193–3 (11 Aug 1992), reprinted in 28 Iran-US CTR 246, 287–88, 291–92 (1992).

1. 49.  The Tribunal believes that the analysis of the distribution of the burden of proof in this Case should be centered around Article 24, paragraph 1 of The Tribunal Rules which states that “[e]ach party shall have the burden of proving the facts relied on to support his claim or defence.” It was the Respondent who, at one point during the proceedings in the Case, raised the defence that the Deed is a forgery. Specifically, the Respondent has contended (p. 588) that the Deed, dated 15 August 1978, was in fact fabricated in 1982. Having made that factual allegation, the Respondent has the Burden of proving it. However, the Tribunal need only concern itself with the question whether the Respondent has met that burden if the Claimant has submitted a document inspiring a minimally sufficient degree of confidence in its authenticity. It is therefore up to the Claimant first to demonstrate prima facie that the Deed is authentic.

2. 122.  Taking into account all the considerations expressed in the foregoing, including TRC' s statements made during the Paris Litigation, the Tribunal believes that the Deed and the affidavits of its signatories do not inspire the minimal degree of confidence in the Deed's authenticity required to shift the burden of proof to the Respondent. The Tribunal thus decided that the Claimant's presentation does not make out a prima facie case of authenticity and that, consequently, it need not address the question whether the Respondent has met is burden of proving that the Deed is a forgery. In view of this determination, the Claim is dismissed for lack of proof of ownership.

Abrahim Rahman Golshani and The Islamic Republic of Iran, Award No. 546–812–3 (2 Mar 1993), reprinted in 29 Iran-US CTR 78, 93, 116 (1993).

B  The Standard of Proof

1. 123.  In these Cases, the Tribunal is confronted with allegations of forgery that, because of their implications of fraudulent conduct and intent to deceive, are particularly grave. The Tribunal has considered whether the nature of the allegation of forgery is such that it requires the application of a standard of proof greater than the customary civil standard of “preponderance of the evidence.” Support for the view that a higher standard is required may be found in American law and English law, both of which apply heightened proof requirements to allegations of fraudulent behavior. In American law the burden imposed is described as “clear and convincing” evidence, and English law speaks of a flexible civil standard that raises the burden of proof where the commission of a fraud or a crime is alleged in civil proceedings.

2. 124.  The allegations of forgery in these Cases seem to the Tribunal to be of a character that requires an enhanced standard of proof. Consistent with its past practice, the Tribunal therefore holds (p. 589) that the allegation of forgery must be proved with a higher degree of probability than other allegations in these Cases. See Oil Field of Texas, Inc. and Government of the Islamic Republic of Iran, et al., Award No. 258–43–1 (8 October 1986), reprinted in 12 Iran-U.S. C.T.R. 308, 315 (holding that alleged bribery would not be established if, on the evidence presented, “reasonable doubts remain”). The minimum quantum of evidence that will be required to satisfy the Tribunal may be described as “clear and convincing evidence,” although the Tribunal deems that precise terminology less important than the enhanced proof requirement that it expresses.

Dadras International et al. and The Islamic Republic of Iran et al., Award No. 567–213/215–3 (7 Nov 1995), reprinted in 31 Iran-US CTR 127, 162 (1995) (footnotes omitted).

1. 157.  The Tribunal notes that the basic rule on the allocation of the burden of proof is expressed in Article 24, paragraph 1, of the Tribunal Rules which states that “[e]ach party shall have the burden of proving the facts relied on to support his claim or defence.” Further, as described by Sandifer in his work on the practice of international tribunals:

   [t]he broad basic rule of burden of proof adopted, in general, by international tribunals resembles the civil law rule and may be simply stated: that the burden of proof rests upon him who asserts the affirmative of a proposition that if not substantiated will result in a decision adverse to his contention. This burden may rest on the defendant, if there be a defendant, equally with the plaintiff, as the former may incur the burden of substantiating any proposition he asserts in answer to the allegations of the plaintiff.

2. 158.  In the present Cases, it was the Respondent who raised the defence that some of the Claimants' documents have been forged. Therefore, the burden of proving that a forgery was committed falls on the Respondent.

3. 159.  As was the case in Dadras International, et al. and The Islamic Republic of Iran, et al., Award No. 567–213/215–3 (7 Nov. 1995), reprinted in 31 Iran-US CTR 127 (“Dadras”), the Tribunal, in the present Cases, is confronted with allegations of forgery that are particularly grave, because of their implications of fraudulent conduct and intent to deceive. The Tribunal (p. 590) considers that the allegations of forgery in these Cases are of a character that requires an enhanced standard of proof. Therefore, consistent with its past practice, the Tribunal holds that the allegation of forgery must be proven with a higher degree of probability than other allegations in these Cases. See, e.g. Dadras, supra, para 124. The proper standard of proof, as articulated in Dadras, was that of “clear and convincing evidence.” Id. This heightened standard of proof was first propounded in Oil Field of Texas, Inc. and The Government of the Islamic Republic of Iran, et al., Award No. 258–43–1, para 25 (8 Oct 1986), reprinted in 12 Iran-U.S. C.T.R. 308, 315.

Vera–Jo Miller Aryeh et al. and The Islamic Republic of Iran, Award No. 581–842/843/844–1 (22 May 1997), reprinted in 33 Iran-US CTR 272, 316–17 (1997) (footnote omitted).

1. 3.  Second, the Award requires the Claimant to “prov[e] the facts relied on to support [her] claim,” as required by Article 24(1) of the Tribunal Rules, not just by a “convincing” preponderance of the evidence (“it is more likely than not”), which is the accepted norm, but effectively “beyond a reasonable doubt,” i.e. the very high standard for securing criminal convictions in common law jurisdictions. This is glaringly evident from the fact that with the exception of one expropriated foal ($2,800 awarded) and one expropriated used Toyota automobile ($7,351 awarded) the Claimant has recovered here only to the extent of properties that the Respondent ultimately conceded in the face of overwhelming evidence that she indeed owned, or, in one case (Khoshkeh), as to which the Respondent's own evidence included, as it turned out, conclusive documentary proof of her ownership (e.g. authentic public records). See Award, paras78, 82, 89, 118 and 179.

As Bin Cheng notes, however:

[W]hen the claimant has established a prima facie case and the respondent has afforded no evidence in rebuttal the latter may not insist that the former pile up evidence to establish its allegations beyond a reasonable doubt without pointing out some reason for doubting.

Or, as Judge Azevedo stated in his Dissenting Opinion in the Corfu Channel Case:

It would be going too far for an international court to insist on direct and visual evidence and to refuse to admit, after reflection, a (p. 591) reasonable amount of human presumptions with a view to reaching that state of moral, human certainty with which, despite the risk of occasional errors, a court of justice must be content.

In my opinion the Tribunal in the instant Case has gone far beyond “too far.”

2. Burden of Proof

1. 18.  It is axiomatic that the burden of proving a claim lies with the party presenting it. This principle is enshrined in Article 24(1) of the Tribunal Rules, providing that each party shall have the burden of proving the facts relied upon to establish its claim or defence. Nevertheless, the Tribunal must take into consideration the difficulties faced by claimants presenting expropriation claims. This is particularly so for an individual claimant, such as the one presenting this Case, who was forced to leave Iran with only a few suitcases and, unlike multinational corporate claimants, was not in the practice of sending copies of relevant documents to an office outside of Iran. As stated in the Tribunal's award in Sola Tiles, “the Tribunal must be prepared to take some account of the disadvantages suffered by the Claimant, namely its lack of access to detailed documentation, as an inevitable consequence of the circumstances in which the expropriation took place.”

2. 19.  Professor Virally addressed the predicament faced by claimants before the Tribunal in a memorandum excerpted in the Buckamier award: [Extracts of Professor Virally's memorandum are omitted here, but are reprinted below in Chapter 17, section 2(C)(6) on the admissibility, relevance, and materiality of evidence.]

3. 20.  The Claimant in this Case has made a valiant effort to produce documents, and, applying the standard just recited, has been to a large extent successful in that effort. The Tribunal failed to bear this in mind properly when it considered the sufficiency of the Claimant's evidence. Moreover, as noted just below, her Case is definitively established by inferences that the Tribunal not only was permitted to make, but was required to make, given the Respondent's repeated refusal to produce key documents in the face of successive Tribunal Orders to do so, whose existence in the Respondent's possession, custody and control could not be, and was not, denied and indeed was confirmed.

Frederica Lincoln Riahi and The Government of the Islamic Republic of Iran, (p. 592) Award No. 600–485–1 (27 Feb 2003), Concurring and Dissenting Opinion of Judge Charles N Brower (27 Feb 2003) (footnotes omitted).

(2)  Tribunal Rules, Article 24(2)

Each Party shall file simultaneously by 1 March 1988 with the Tribunal copies of any remaining written evidence on which it will seek to rely together with a list of all documentary evidence submitted by it in this Case and the location in the record (by tab or exhibit number) of each such document. By the same date each Party may file a Hearing Memorial explaining the evidence and summarizing the issues in the Case.

Each Party shall file simultaneously by 1 June 1988 copies of any documentary evidence on which it will seek to rely in rebuttal of previously presented evidence together with a supplemental list of such rebuttal evidence and the location of each such document in the record.

In this context the Parties should bear in mind that the following considerations will apply once the Tribunal has scheduled a Hearing.

1. 1.  The Tribunal will not permit the introduction of new documents in evidence prior to the Hearing unless it finds that this is justified by exceptional circumstances and unless such documents are filed not later than two months before the Hearing.

2. 2.  At the Hearing, any Party is free to make any arguments it wishes, but new documents may not be introduced in evidence unless the Tribunal so permits, which permission will not normally be granted except for evidence in rebuttal of evidence introduced in the Hearing.

The guidelines for the translation of documentary evidence are attached to this Order.

Brown & Root, Inc. and The Islamic Republic of Iran, Case No. 432, Chamber One, Order of 4 Dec 1987.

(3)  Tribunal Rules, Article 24(3)

A Pre–hearing Conference having been held in the above cases on 12 January 1983, the Tribunal orders as follows:

1. 1.  On or before 27 August 1983 each of the Parties shall file with the Tribunal legible copies of all documents upon which it intends to rely in support of its case.

2. 2.  In addition to the above requirement, the Respondents shall produce the following documents:

(p. 593)

3. 1. (a)  all general ledgers and subledger books of S.S.K. Magcobar Iran for fiscal years 1977 through 1980, inclusive;

   2. (b)  all balance sheets and audit reports of or concerning S.S.K. Magcobar Iran for the 1979 and 1980 fiscal years;

   3. (c)  all bank statements and deposit reports for S.S.K. Magcobar Iran for the fiscal years 1977 through 1980, inclusive;

   4. (d)  any and all asset account prepared for fiscal years 1977 through 1980, inclusive.

If any of the above materials are in the possession of Respondent S.S.K. Magcobar, said Respondent shall either make the originals of the materials available at the Tribunal for the purpose of inspection and copying by the parties from 27 August 1983 until 27 October 1983 or shall file two copies of each item with the Tribunal by 27 June 1983.

If any of the above materials are in the possession of the Respondent Government of the Islamic Republic of Iran or in the possession of any other person or entity as the result of judicial process of any court of Iran, the Government of the Islamic Republic of Iran shall either make the originals of the materials available at the Tribunal for the purpose of inspection and copying by the Parties from 27 August 1983 to 27 October 1983 or shall file two copies of each item with the Tribunal by 27 June 1983.

Dresser Industries, Inc. and The Islamic Republic of Iran and SSK Magcobar Iran, Case Nos. 107, 109 and 110, Chamber Three, Order of 27 Jan 1983.

The Tribunal notes that the Claimant has filed on 15 September 1983 a document requesting, inter alia, the production of certain documents by the Respondents, and more time to continue its search for materials, as well as to amplify and clarify its claim, as directed by the order of 19 July 1983.

Failing any indication by the Claimant as to which documents precisely it wishes to be produced, and failing any information to the Tribunal as to which steps were taken by the Claimant itself to acquire the necessary materials, the Tribunal cannot, at present, make any Order as requested by the Claimant.

MCA Incorporated and The Islamic Republic of Iran, Case No. 768, Chamber Two, Order of 6 Oct 1983.

1. (4)  With respect to the Counterclaim, the Respondent has requested, pursuant to Article 24, paragraph 3, and Article 26 of the Tribunal Rules that the Tribunal order the Claimant to render a full and (p. 594) immediate accounting with respect to all classified military equipment and related classified information acquired by Iran under the FMS program. The Tribunal is not convinced that the requested measures are warranted at the present stage of the proceedings, either under Article 24 paragraph 3, or Article 26 of the Tribunal Rules.

   The Representative of the United States may return to this matter at any time.

The Ministry of National Defence of the Islamic Republic of Iran and The Department of Defence of the United States of America, Case No. B1, Full Tribunal, Order of 18 Nov 1983, reprinted in 4 Iran-US CTR 57, 58 (1983–III).

Noting Respondent National Iranian Oil Company's comments concerning its difficulties in gaining access to certain documents, the Tribunal wishes to point out that it could require either Party to produce documents, if it deems this necessary, in accordance with Article 24 paragraph 3 of the Tribunal Rules.

If the National Iranian Oil Company has any specific request in this regard, it should file such request not later than 31 March 1985.

Weatherford International Inc. and The Islamic Republic of Iran, Case No. 305, Chamber Two, Order of 15 Feb 1985.

The report's numerous references to special rules and directives of CLI also make it impossible for the Tribunal to judge the validity of the valuation techniques used. The Respondent has furnished neither the texts of such rules and directives nor the underlying documents, although it was ordered to do so. The Respondent's attempt to excuse its noncompliance with the Tribunal's Order by merely stating that the documents were “voluminous” is not convincing. The Respondent did not raise this asserted excuse until the hearing, long after the date for submission of these materials had passed; even then, the Respondent gave no indication of the actual amounts of material involved or any description of the alleged problems involved which prevented submission of the materials by the Respondent or their inspection by INA. In assessing the evidentiary weight of the Amin report, the Tribunal must draw negative inferences from the Respondents failure to submit the documents which it was ordered to produce. In sum, the Amin report is so qualified and limited, and so influenced by unexplained, specially (p. 595) adopted (and not generally accepted) accounting techniques, that it cannot be considered the value of Shargh at the time of nationalisation.

INA Corporation and The Islamic Republic of Iran, Award No. 184–161–1 (12 Aug 1985) at 14, reprinted in 8 Iran-US CTR 373, 382 (1985–I) (footnote omitted).

The Tribunal notes Respondent National Iranian Oil Company's submission of 10 June 1986, requesting the Tribunal to direct the Claimant to produce certain documents.

The Tribunal further notes Claimant's letter of 20 June 1986 objecting to such request and stating that “it is willing to make available to NIOC for inspection … the original inventory and equipment records … at Offshore's premises in Houston.”

The Tribunal wishes to point out that the Party who carries the burden of proof determines at its discretion what evidence it wishes to submit in support of its Claim.

It is normally not up to the Tribunal to give directions to any of the Parties regarding the evidence to be submitted by them.

1. 1.  In view thereof, the Tribunal denies Respondent National Iranian Oil Company's request for the production of certain documents by the Claimant. However, if Respondent NIOC wishes to take advantage of the Claimant's offer, any report in connection with its inspection of the above mentioned original inventory and equipment records shall be filed not later than 26 August 1986.

2. 2.  ln view of the filing date of this Order, the time for Respondent NIOC to file its Rebuttal evidence and brief, due on 29 June 1986, is hereby extended to 15 July 1986. As stated in the Tribunal's Order of 7 April 1986, no further extension shall be granted. Therefore, if the new filing authorized by the present Order is made, it shall be limited to the expert's report.

3. 3.  The Tribunal intends to schedule a Hearing in this Case during the first half of 1987.

The Offshore Company and National Iranian Oil Company, Case No. 133, Chamber Two, Order of 26 Jun 1986.

Reference is made to the Tribunal's Order of 7 June 1984 and to the documents subsequently filed by the Parties. In view of the fact that the Claimant has requested a hearing on the issues of locus standi and jurisdiction described in paragraph 3 of the Order referred to, the (p. 596) Tribunal decides that all such issues shall be joined to the merits of the Case.

It remains open to the Claimant to establish jurisdiction either directly or indirectly over any part of the claim.

The Respondents are requested to file a Rejoinder on the merits by 31 October 1986 including, in particular, a detailed clarification of the counterclaims raised by Melli Industrial Group.

As to the Claimant's Motion for Production of Documents, filed on 30 May 1983 and supplemented by a further filing on 12 June 1984, the Tribunal notes from statements made by the respective Parties at the prehearing conference that the Respondents are prepared to make available for inspection by the claimant at the Tribunal's Registry, the share registers described in paragraph I of the Motion, and also such of the documents itemised in paragraphs 2 and 3 as pertain to the registration, transfer or ownership of shares in the companies enumerated in that Motion.

With regard to the documents described in paragraphs 4, 5, 6, 7 and 8 to 15 inclusive, the Respondents are requested to include in the Rejoinder their comments as to the availability and relevance of such documents.

The Claimant is requested to inform the Tribunal by 30 January 1987 whether, in the light of the Rejoinder, he wishes to maintain his request for production in respect of the documents described in paragraphs 4, 5, 6, 7 and 8 to 15 inclusive of the Motion.

RPM Carlson and The Islamic Republic of Iran, Case No. 248, Chamber One, Order of 12 Aug 1986.

Reference is made to the submission filed on 2 December 1986 in which the Agent of the Government of the Islamic Republic of Iran requested the Tribunal to order the Claimant to produce a copy of the contract, dated 15 April 1985 and referred to in Document No. 50, filed on 30 June 1986 by which the Claimant assigned its Claim to Geogas Inc.

The Tribunal notes that the above–mentioned assignment occurred after 19 January 1981 and therefore has no bearing on the Claimant's locus standi, according to Article VII, paragraph 2, of the Claims Settlement Declaration. Consequently, the request is denied.

International Systems & Controls and National Iranian Gas Company, Case No. 494, Chamber Three, Order of 24 Dec 1986. (p. 597)

On 15 November 1991, the Claimant filed a submission entitled “Request for Production of Documents.” On 21 February 1992, the Respondent filed its comments on that request. Having regard to the Respondent's submission and in view of the fact that the record does not demonstrate what specific efforts, if any, the Claimant has made to obtain the documents through other sources, the Tribunal finds the Claimant's request inadmissible.

Vera–Jo Miller on her own behalf, on behalf of Laura Aryeh, on behalf of JM Aryeh and The Islamic Republic of Iran, Case Nos. 842, 843 and 844, Chamber One, Order of 6 Mar 1992.

This order is a response to the Respondents' request of 28 April 1992 and the Parties' subsequent comments, to the Respondents' request of 7 August 1992 and the Claimants' subsequent comments, and to the Respondents' requests of 16 October 1992 and of 16 December 1992.

1. 1.  On 28 April 1992, the Respondents filed a letter in which they requested the production of various documents. The Respondents state that their auditors have informed them that they need the documents requested in their submission “in order to carry out a general and precise audit of the Chahbaha and Bandar projects.” The Respondents also contend that the Claimants have conceded the necessity of such an audit.

2. 2.  On 9 June 1992, the Claimants filed submission entitled “Claimants' Comments in Response to Respondents' Request for Production of Documents for Auditing” in which they advance several arguments for denying the Respondents' request. The Claimants state that to the extent that the documentation requested by the Respondents is in the possession of the Claimants, it is contained in hundreds of boxes located in Houston, Texas and can only be procured with the expenditure of an enormous amount of time and at great cost to the Claimants. Further the Claimants contend that the Respondents' request for documents at this stage of the proceedings is “unreasonable, unnecessary and too late.”

3. 3.  Having noted the positions taken up by the Parties, the Tribunal now decides the Respondents' request of 28 April 1992. Considering the circumstances as a whole, the Tribunal does not deem it appropriate to require the Claimants to produce the documents requested by the Respondents. However, the Tribunal points out that this decision is without prejudice to the Tribunal, if and when it eventually considers the merits of the Case, weighing the evidentiary significance if any, that flows from the above–mentioned (p. 598) Respondents' request for production of documents and the Claimants position taken in their respective submissions.

Brown & Root, Inc. and The Islamic Republic of Iran, Case No. 50, Chamber One, Order of 4 Jan 1993.

On 12 February, 1993 the Claimant filed her “Claimant's Memorial and Request for Production of Documents” (Doc. 53) in which the Claimant on pages 54 and 55 requested the Tribunal to order the Respondent to submit the documents a) contained in the Claimant's safe deposit box at Bank Tehran, Main Office, Vali Assr Avenue Tehran, Iran, including among other things her share certificates in Rahmatabad in the summer of 1979 which were kept at Rahmatabad office in Rahmatabad farm.

The Respondent is invited to submit its comments as to whether it is possible to submit the documents, as well as copies at the minutes requested, and if so, to submit these documents by 26 April 1993.

Frederica Lincoln Riahi and The Islamic Republic of Iran, Case No. 485, Chamber One, Order of 23 Feb 1993.

1. 6.  With respect to the Claimants' request that the Tribunal direct the Respondent to provide a written report on the current status of each of the properties that are the subject of the Claims, the Tribunal notes that this is also a late request. Furthermore, it is a request, not for a document in the possession of the Respondent, but for the preparation of a report by the Respondent. Consequently, the Tribunal finds that granting this request would impose an improper and late burden on the Respondent and be likely to disrupt the orderly conduct of the Tribunal's proceedings. The Tribunal therefore declines to grant the Claimant's request that it direct the Respondent to provide such a report.

Ouziel Aryeh et al. and The Islamic Republic of Iran, Case Nos. 839 and 840, Chamber Three, Order of 18 Jan 1996.

1. 1.  On 26 January 1998, in Document 22, Iran requested the Tribunal to issue an Order to the United States to produce the “classified Schedule of Authorization” incorporated into the Intelligence Authorization Act for Fiscal Year 1996 by Section 102 of that Act. Iran argued that the document was relevant to and necessary for its claim and that the document was available to the United States and to the United States alone.

(p. 599)

2. 2.  On 27 April 1998, in Document 28, the United States asserted that the request was without merit and asked that it be denied. The United States asserted … that the document was a privileged, national security document…. The United States stated that, in fact, it would not be able to produce the document requested by Iran and that its refusal should not lead to the drawing of any adverse inference by the Tribunal.

3. 5.  In response to these pleadings, the Tribunal decides as follows:

4. 1. a.  Iran's request that the Tribunal issue an order requesting production of that part of the Schedule of Authorizations that relates to Iran is a request within the jurisdiction of the Tribunal.

   2. b.  Nevertheless, the statement by the United States that it could not produce the Schedule or any part of the Schedule relating to Iran, even if the Tribunal should so request, makes it unnecessary for the Tribunal to issue any order pursuant to Iran's request and raises the consequent question whether it would be appropriate for the Tribunal to draw any adverse inference and, if so, the nature of any such inference.

   3. c.  The Parties are requested to address those questions of adverse inference in their further pleadings.

The Islamic Republic of Iran and The United States of America, Case No. A/30, Full Tribunal, Order of 4 Nov 1999.

3.  Drawing Adverse Inferences

a)  The Respondent's repeated and express refusal to comply with document production orders

1. 21.  Pursuant to the Claimant's multiple requests, the Tribunal repeatedly has ordered the Respondent to produce various documents relevant to the Claimant's ownership interests in the companies at issue in this Case, or to explain its failure to do so. These documents include, inter alia, minutes of shareholders' and Board of Directors' meetings, share registers, registration files and financial documents. The Respondent has clearly and egregiously failed to produce the vast majority of these documents–which the Claimant believes would substantiate her Claim–despite its obligation to do so. The Tribunal itself acknowledged the Respondent's failure in this regard. In its final Order requiring production, dated 18 May 1995, the Tribunal determined that it was not satisfied that (p. 600) the Respondent had complied with its previous document production Orders. Upon receiving the Respondent's cursory response, the Tribunal concluded that the determination of whether the Respondent had complied with its document production Orders would be made at a later date. In its present Award, the Tribunal should have made that determination and generally confirmed as a fact its earlier intimation that the Respondent has failed to comply with its Orders. As a result of this failure, the Tribunal should have drawn inferences adverse to the Respondent and assumed that the requested documents, if submitted, would have substantiated the Claimant's assertions. Specifically, the Claimant should not have been faulted when the evidence offered in support of certain aspects of her Claim was sparse, and instead the Tribunal should have inferred that the documents withheld by the Respondent would have established further the Claimant's position.

b)  The Tribunal's authority to draw adverse inferences

1. 30.  The Tribunal is empowered to draw adverse inferences due to the non–production of documents, and repeatedly has done so. Under the Tribunal's jurisprudence, several requirements must be met in order to draw an adverse inference. First, the requested documents must be relevant and material to the proceedings. This has also been phrased as requiring them to be “essential” to the resolution of the case. The documents requested in this Case clearly are relevant to the Claim, as the Tribunal's Orders of 18 November 1994 and 18 May 1995 necessarily found. Second, the Tribunal must be convinced that the requested documents are at the disposal of the requested party. In this Case, the Respondent has never denied its possession, custody or control of the bulk of the requested documents. To the contrary, in asserting that they are publicly available documents accessible to the Claimant (which she has denied in detail), the Respondent necessarily admits their availability to it. The highly selective submission by the Respondent of some of the documents ordered to be produced, e.g. the share register of Tarvandan, and its express reliance in its Hearing Memorial and Evidence on extensive financial documentation of various companies graphically confirm that it does have access to the types of documents ordered produced. Third, the claim must otherwise appear to be substantial, meaning that the claimant should have made out a prima facie case. The Claimant clearly has established a prima facie case that she owned the property that is (p. 601) the subject of her Claim and that the property was expropriated by the Respondent. Fourth, the party failing to produce must have offered no satisfactory explanation for such failure. This is an essential requirement, as the justification for drawing an adverse inference is that a party possessing evidence that supports its position, or which disproves that of its opponent, will either submit that evidence upon being so ordered or provide a reasonable explanation for its failure to do so. As discussed, the Respondent has not justified its failure to produce the requested documents. Therefore, all of the requirements for drawing adverse inferences have been met in this Case and the Tribunal should have drawn appropriate inferences. Such adverse inferences must be taken into account when examining the amount and sort of evidence submitted by the Claimant and the value given to individual pieces of evidence, such as Mr. Riahi's diary and ledger and Mr. and Mrs. Riahi's affidavits.

Frederica Lincoln Riahi and The Government of the Islamic Republic of Iran, Award No. 600–485–1 (27 Feb 2003), Concurring and Dissenting Opinion of Judge Charles N Brower (27 Feb 2003) (footnotes omitted).