(1)  Notice of hearing–Article 25(1)

Article 25(1) stipulates that “the arbitral tribunal shall give the parties adequate advance notice of the date, time and place” of any oral hearing.⁴ Also, as the UNCITRAL Notes on Organizing Arbitral Proceedings explain, “[l]aws on arbitral procedure and arbitration rules often have provisions as to the cases in which oral hearings must be held and as to when the arbitral tribunal has discretion to decide whether to hold hearings.”⁵

The adequacy of prior notice depends on the nature of the case and circumstances, such as the geographical distances involved. In a claims settlement process like the one before the Iran-US Claims Tribunal, the case load and the consequent necessity of coordinating numerous schedules tend to guarantee the provision of sufficient notice. Parties to proceedings before that Tribunal typically received notice about six months prior to the hearing. In ad hoc arbitration, shorter periods–of even as little as one or two months–may be sufficient.

The notice concerning the hearing must indicate “the date, time and place thereof.” The hearing is normally held in the country (and city) designated as the place of arbitration. The exact locale is specified in the notice.⁶ When selecting the locale, an ad hoc arbitral tribunal should research the availability of an arbitral institution to render its administrative services in accordance with the Recommendations to Assist Arbitral Institutions and Other Interested Bodies with regard to Arbitrations under the UNCITRAL Arbitration Rules.⁷

As to the requirement to indicate “time,” the hearing notice should provide information about the projected length of the hearing as well as the exact time it will commence.⁸ The length of the hearing is an issue about which no general rule can be formulated: the time needed may range from one day for a relatively simple case, to the six weeks utilized in the arbitration (not (p. 609) conducted under the UNCITRAL Rules) between The Government and State of Kuwait and The American Independent Oil Company (Aminoil).⁹

In many cases, a few days are likely to suffice,¹⁰ given the predominant role which documentary evidence normally plays in international proceedings.¹¹ The arbitral tribunal may reduce the need for lengthy (and costly) hearings by specifying in appropriate cases–preferably after consultation with the parties–the issues on which oral evidence and argument should concentrate.¹² This may in turn make it desirable to postpone the scheduling of the hearing until a relatively advanced stage of the written proceedings, so as to facilitate the arbitral tribunal's task of determining how many hearing days are needed. In the practice of the Iran-US Claims Tribunal most hearing sessions were scheduled for only one or two days, although this brevity was probably a result of the heavy case load of the Tribunal rather than an assessment of what would be the optimal length of hearing for each case.¹³

In order to help the parties prepare for the hearing, the arbitral tribunal may provide, in addition to notice of time and place, more detailed information about the organization of the hearing.¹⁴

The notice of hearing normally takes the form of an order issued by the arbitral tribunal. In ad hoc arbitration, however, nothing prevents the tribunal from using an arbitral institution whose services may include “[a]ssisting the arbitral tribunal in establishing the date, time and place of hearings, and giving advance notice to the parties.”¹⁵

If a party, duly notified of the hearing, fails to appear without showing (p. 610) sufficient cause, the tribunal may, according to the explicit provision of Article 28(2), proceed with the arbitration in the absence of that party.¹⁶

(2)  Notice of witnesses–Article 25(2)

(3)  Translation of oral statements, record of the hearing–Article 25(3)

Article 25(3) “deals with certain preparatory measures for hearings that the arbitrators must take in order to ensure that the hearings run smoothly.”³⁸ These include “arrangements for the translation of oral statements made at a hearing and for a record of the hearing,” provided that either (1) they are deemed necessary by the arbitral tribunal, or (2) “the parties have agreed thereto and have communicated such agreement to the tribunal at least (p. 614) fifteen days before the hearing.”³⁹ An agreement of the parties concerning such matters is determinative.

In the absence of a party agreement, the translation arrangements depend primarily on the general determination of the language of the arbitration made pursuant to Article 17. If, for example, the arbitration is conducted in two languages and both are to be utilized at the hearing, translation facilities will be required.⁴⁰ Where, however, it is clear that the parties (and their witnesses) have a common language, or can understand each others' language, translation from one official language into the other can be avoided, with the consent of the parties. Translation may be needed in monolingual arbitration if the parties bring witnesses who testify in a language other than the language of the arbitration. Article 25(2) requires that the notification of witnesses to be provided by the parties include information about the language in which the witnesses will testify.⁴¹

It is advisable for the arbitral tribunal to keep some kind of authoritative record of the hearing, should statements made at the hearing become an issue later.⁴² The nature of the record depends on the particular features of the arbitration. The more central a role the hearing is likely to play in the proceedings, the more detailed the record should be. Conversely, in cases which center on written proceedings, the record can be limited to minutes in which only the main contentions, especially changes made in written pleadings, are recorded. Any request concerning the record made by a party should be treated as a relevant consideration.⁴³ Although the reference to a “verbatim record,” which was in both the Preliminary Draft and Revised Draft, was replaced by the word “record” in the Rule as finally adopted, a verbatim (p. 615) record can be provided for if the tribunal deems it appropriate.⁴⁴ Such a record can be prepared with the help of tape–recording facilities or a stenographer.⁴⁵ Both parties, of course, must be guaranteed access to any transcript made of such a record.⁴⁶

The arrangements mentioned in Article 25(3) usually require the assistance of an arbitral institution. As regards ad hoc arbitration, “[a]rranging for stenographic transcripts of hearings,” inter alia, is something an arbitral institution willing to render administrative services should be able to provide.⁴⁷

In administered arbitration, the administering body normally has the necessary facilities, or at least the capacity and experience to provide for them. Thus, the Language Services of the Iran-US Claims Tribunal provide for interpretation needed at each hearing held at the Tribunal, and the Notes to Article 25 give the Secretary–General instructions in case the Tribunal decides to record a hearing.⁴⁸ In actual practice, it should be noted that the Tribunal has arranged to have a hearing taped on very rare occasions. One such occasion was the Sedco case in which oral proceedings were held in spite of the absences of the Respondents and one arbitrator “for the limited purpose of hearing Claimant's expert witness Mr. Whitney.”⁴⁹ In normal cases, the Tribunal staff has prepared relatively concise minutes of the hearing. The parties themselves, of course, are free to make stenographic records at their own expense, provided they make the transcript freely available to the Tribunal. Parties are generally prohibited from tape–recording oral proceedings, apparently because such efforts are not considered conducive to building a constructive and friendly atmosphere.⁵⁰ The Tribunal practice, as reflected in the notes to Article 25, can provide guidance for other arbitral tribunals.⁵¹

(p. 616) (4)  The conduct of the hearing–Article 25(4)

(5)  Written witness statements–Article 25(5)

Article 25(5) contains the somewhat controversial rule that “[e]vidence of witnesses may also be presented in the form of written statements signed by them.” This provision was not included in the Preliminary Draft, and the Committee of the Whole (II) had serious reservations about its inclusion in the Rules. The representative of Austria reflected the reasoning behind the Committee's attitude when he noted that “because under Austrian law evidence of witnesses in written form was not acceptable [it] would be regarded as contrary to public order.”⁷¹ Despite such concerns, the provision on the permissibility of witness statements was retained in the Rules.⁷²

Without doubt the use of written statements in international arbitration has obvious advantages where it may be difficult in practice to have all necessary witnesses appear in person.⁷³ Accordingly, many domestic laws that prohibit written witness statements are typically more receptive to this form of evidence in the context of arbitration. For example, the Finnish law of civil procedure bars written statements by witnesses who do not appear in person, but accepts witness affidavits in international arbitration cases.⁷⁴ In the (p. 620) practice of the Iran-US Claims Tribunal and other arbitral tribunals, written statements signed by the witness have been widely used.⁷⁵ Nevertheless, before relying on written statements in accordance with Article 25(5), the arbitral tribunal should ascertain that it is not acting contrary to any mandatory rule of the applicable domestic law.⁷⁶ On the other hand, where non–mandatory provisions of the applicable procedural law prohibit affidavit testimony, it is of special importance to have the provisions of Article 25(5) included in the arbitration rules or agreement. Without such explicit provision the use of written statements might be considered a violation of the party agreement.⁷⁷ The tribunal also has the option of ordering the party which has submitted the written statements to produce its witness in person.⁷⁸

Apart from possible mandatory requirements of domestic law, Article 25(5) does not impose any specific conditions on the form that written statements must take. Thus, “it is not required under this paragraph that the witnesses signing such statements also swear to their veracity.”⁷⁹ The party may have the affidavit sworn in before a competent authority.⁸⁰ Whether to give this kind of affidavit more weight than an unsworn statement is a matter which the arbitral tribunal must determine in accordance with Article 25(6), discussed below.

Because affidavits submitted under Article 25(5) are documentary evidence, they are subject to the time limits applied to documentary evidence.⁸¹

(p. 621) (6)  Admissibility, relevance, materiality and weight of the evidence–Article 25(6)

Article 25(6) is the cornerstone of the evidentiary rules contained in the remainder of Article 25. This provision makes clear that rigid rules of evidence are unsuitable for international arbitral proceedings.⁸² Instead, as emphasized in the travaux préparatoires, “[i]n making rulings on the evidence, arbitrators should enjoy the greatest possible freedom and they are therefore freed from having to observe the strict legal rules of evidence.”⁸³

Such freedom is expressed in the wording of Article 25(6), according to which it is up to the arbitral tribunal to “determine the admissibility, relevance, materiality and weight of the evidence offered.” Although the provision appears in an article pertaining mostly to oral proceedings, its wording and the interpretive history supplied by the preparatory works and the practice of the Iran-US Claims Tribunal clearly show that it confers discretion on the tribunal with respect to all forms of evidence.⁸⁴

Among the aspects covered by Article 25(6) (admissibility, relevance, materiality, and weight of the evidence) admissibility merits separate discussion. The UNCITRAL Rules do not contain strict rules regarding admissibility, thereby allowing the arbitral tribunal to exercise a liberal policy in this area, as is customary in international arbitration.⁸⁵ On the other hand, nothing in Article 25(6) prevents the arbitral tribunal from following the formal rules of evidence of a national system familiar to both parties. Should the tribunal choose to adopt its own policy consistent with the liberal tone of Article 25(6), it should not construe the rule as permitting the unrestricted (p. 622) admission of evidence. Where, for instance, a strict deadline for the submission of documentary evidence has been set, any significant delay in filing the evidence normally should lead to its rejection.⁸⁶ Certain kinds of evidence, such as information concerning confidential negotiations between the parties prior to the arbitral proceedings, are generally considered inadmissible as evidence, and should therefore be rejected.⁸⁷ The arbitral tribunal also has the power to refuse to hear a witness, if it is clear at the outset that the testimony is unnecessary.⁸⁸

But aside from these circumstances (and the exceptional case in which some strict domestic evidentiary system is applied), evidence should not be rejected on any formal or technical grounds. Thus, there is, in principle, no prohibition of what is known in common law as “hearsay evidence,”⁸⁹ although characterizing the evidence in this way may affect its probative value.⁹⁰ Even the principle that information concerning confidential negotiations between the parties lacks evidentiary value could be based on the irrelevance of such information rather than on its inadmissibility per se.⁹¹ In any case, a liberal attitude towards admissibility, with objections restricted to the “relevance, materiality and weight of the evidence offered,” accords best with both the spirit of Article 25(6) and arbitral practice in general.⁹² This is also the general approach adopted by the Iran-US Claims Tribunal.⁹³

(p. 623) Therefore, rather than summarily rejecting evidence, the arbitral tribunal should normally make an effort to determine its relevance and materiality.⁹⁴ As this is not likely to cause difficulties warranting lengthy discussion, we come finally to the issue concerning the “weight” of the evidence. This term was added to the text at the final stage of the drafting process so as to emphasize the wide discretion which the arbitrators were to have.⁹⁵

Because this discretion is applied in light of concrete circumstances, general rules on the weighing of evidence cannot be predetermined. Nevertheless, illustrations provided by the case history of the Iran-US Claims Tribunal may be helpful. For example, although there is no formal prohibition against hearsay evidence, the Tribunal could accord less weight to the testimony of a witness who lacks direct personal knowledge of the subject matter at issue than to the testimony of a witness who does have such personal knowledge.⁹⁶ Similarly, although “company witnesses”⁹⁷ can be heard, circumstances may demand a cautious assessment of their testimony.⁹⁸ Consequently, certain kinds of evidence may be regarded as sufficient to create only tentative, or prima facie, proof which requires the corroboration of further evidence. On the other hand, evidence which does not suffer from the kinds of deficiencies just discussed may have to be disregarded if contradicted by other evidence emanating from the same party; it has been called a “general rule of evidence that contradictory statements of an interested party should be construed against that party.”⁹⁹

In conclusion, under Article 25(6), the discretion “of arbitrators to evaluate the evidence offered by the parties is phrased in the broadest terms (p. 624) possible.”¹⁰⁰ Certain principles based on common sense are a good guide in the exercise of that discretion.¹⁰¹

(1)  Tribunal Rules, Article 25(1)

With respect to the organization of the Hearing, the Tribunal tentatively establishes the following schedule for the conduct of the Hearing:

7 April 1986 morning:	the Claimant's presentation
	Questions by the Arbitrators
afternoon:	the Respondent's presentation
	Questions by the Arbitrators
8 April 1986 morning:	Questioning of Experts
afternoon:	Rebuttals

Chas T Main International, Inc. and Khuzestan Water & Power Authority, Case No. 120, Chamber Two, Order of 14 Feb 1986.

The Parties are requested to appear before Chamber One of the Tribunal for a Hearing which is scheduled to take place on 15 and 16 April 1987 at Parkweg 13, The Hague, starting on 1 April 1987 at 9.30 a.m.

1. c.  With respect to witnesses, the Tribunal reminds the Parties of the requirements of Article 25 of the Tribunal Rules.

Rockwell International Systems, Inc. and The Islamic Republic of Iran (The Ministry of National Defence), Case No. 430, Chamber One, Order of 18 Sep 1986.

1. 10.  … Having regard to its Order of 19 February 1992 by which the Parties were notified of the Hearing, see supra, para 8, and to the fact that Plicoflex itself did not show sufficient cause for its failure to appear at the Hearing, the Tribunal decided pursuant to Article 28, … to proceed with the arbitration in the absence of Plicoflex.

(p. 625) Plicoflex, Inc. and The Islamic Republic of Iran, Case No. 354, Chamber One, Award No. 535–354–1 (16 Oct 1992), reprinted in 28 Iran-US CTR 309, 312 (1992).

1. 1.  The Chamber is considering whether the pleadings in this Case are such that it may decide the question of nationality on the documents submitted to date, or whether a Hearing is necessary. Since the Respondent has not commented upon Claimant's submission of 26 January 1995, it is invited to do so by 15 March 1995.

2. 2.  In addition, both Parties are kindly invited to comment on further procedural steps in general, and in particular, if the Chamber were to decide that nationality cannot be determined on the documents submitted to date, whether a Hearing should be convened to deal solely with the nationality question or whether a Hearing could be held, after pleadings on the merits have been completed, to cover both nationality and the merits. Such comments should also be submitted by 15 March 1995.

Thomas K Khosravi and The Government of the Islamic Republic of Iran, Case No. 146, Chamber Three, Order of 2 Mar 1995.

The Parties are requested to appear before Chamber One of the Tribunal for a Hearing which is scheduled to take place on 24–28 May 1999 at Parkweg 13, The Hague, starting on 24 May 1999 at 9.30 a.m. In case of need and due to the Tribunal's official holiday on 31 May 1999, Memorial Day, Tuesday 1 June 1999 and Wednesday 2 June 1999 are reserved for further proceedings.

1. (c)  With respect to witnesses, the Tribunal reminds the Parties of the requirements of Article 25 of the Tribunal Rules. The Tribunal emphasizes that the particulars of the witnesses should be filed in accordance with Article 25, paragraph 2 of the Tribunal Rules.

Frederica Lincoln Riahi and The Government of the Islamic Republic of Iran, Case No. 485, Chamber One, Order of 26 Oct 1998.

In light of the Parties' submissions (Docs. 451–455) as well as of the consultations between the Agents of the two Governments and the President of the Tribunal, the Tribunal takes the following decision concerning the holding of a Hearing in these Cases.

1. (a)  The Tribunal will begin by hearing the general issues raised by the Parties in these Cases. This part of the Hearing is scheduled to take (p. 626) place on 2–6 and 9–13 May 2005 at Parkweg 13, The Hague, starting each day at 9:30 a.m. If required, this part of the Hearing will continue on 17–18 May 2005.

2. (b)  Subsequently, the Tribunal will hear the individual claims in these Cases. This part of the Hearing is scheduled to take place during the periods 12 September–4 October 2005 and 7 November–16 December 2005 (with a brief suspension for the Thanksgiving holiday) at Parkweg 13, The Hague. The Tribunal expects in most instances that there will be four working days during each week of the Hearing, starting each day at 9:30 a.m. The Hearing will resume in February 2006; the specific dates will be set at a later time.

3. (c)  In any event, the Tribunal plans to terminate the Hearing in these Cases no later than mid–March 2006.

4. (d)  The Tribunal requests the Parties to submit by 18 November 2004 their proposals concerning (1) the groupings of the individual claims; (2) their sequence during the Hearin; and (3) the maximum number of days required for each grouping. If necessary, the President will thereafter convene a meeting with the Agents of the two Governments to work out a detailed schedule for hearing the individual claims within the framework indicated supra, in subparagraph (b).

The Islamic Republic of Iran and The United States of America, Case Nos. A3, A8, A9, A14 and B16, Full Tribunal, Order of 15 Jun 2004.

(2)  Tribunal Rules, Article 25(2)

See Rockwell International Systems, quoted above in Section C(1).

This occurred under circumstances in which the Claimant's request at the Hearing to be permitted to appear as a witness was refused. Due to the sensitivity of the matter, the minutes of this portion of the Hearing are here quoted verbatim:

It was so decided that Mr. Jennings would not be heard as a witness, because he is the chairman of the board of directors of the Company and is therefore considered to be an interested party.

Economy Forms Corp. and The Islamic Republic of Iran, Award No. 55–161–1 at 30, reprinted in 3 Iran-US CTR 42 (1983–II), Dissenting Opinion of Mahmoud K Kashani (8 Dec 1983), reprinted in 5 Iran-US CTR 1, 23 (1984–I).

(ii) admissibility of rebuttal evidence

1. 22.  On 24 October 1985, the Respondents filed a notification purporting (p. 627) to designate a “rebuttal witness” they intended to present at the hearing in this Case pursuant to Note 2 to Article 25 of the Tribunal Rules. The person so named, Mr. Ahmed Zahedi Kermani, was present at the hearing, held four days later on 28 and 29 October 1985, and made statements which principally concerned the course of dealings leading to the Contract.

2. 23.  Article 25, paragraph 2, requires each party to communicate at least thirty days before the hearing the names and addresses of any witnesses it will call and the subject on and language in which the witnesses will testify. Note 2 to the same Article subjects this rule to an exception, however, in the case of rebuttal witnesses:

   The information [otherwise required] is not required with respect to any witnesses which an arbitrating party may later decide to present to rebut evidence presented by the other arbitrating party. However, such information concerning any rebuttal witness shall be communicated … as far in advance of hearing the witness as is reasonably possible.

In light of the general notice requirement of Article 25, paragraph 2, and the provisions of the second sentence of Note 2, it is clear that the exception for rebuttal witnesses created by the first sentence of Note 2 applies only to witnesses who are called to rebut evidence presented at the hearing or so soon before it as to render the normal period of notice impossible. To construe this limited derogation to encompass witnesses whose testimony would address matters raised earlier in the proceedings would be effectively to exclude from the scope of the general rule a large class of witnesses which it was clearly intended to cover.

1. 24.  Mr. Kermani's statements did not address matters recently raised and hence there was no reason why the Respondents could not have communicated their intention to call him by means of the ordinary Article 25 procedure. Accordingly, his statements are not admissible as rebuttal within the meaning of Note 2 to Article 25 of the Tribunal Rules.

William J Levitt and The Islamic Republic of Iran, Award No. 297–207–1 (22 Apr 1987), reprinted in 14 Iran-US CTR 91, 197–98 (1987–I).

1. 2.  A Hearing in this Case was held on 9 September 1986.

1. 21.  On 20 August 1986 the Claimant filed a notification of three witness: Mr. Jaulin, Mr. Fayek, and Mr. McGraw. Pursuant to Article 25 of the Tribunal Rules, the Claimant was required to file (p. 628) this notification at least thirty days before the Hearing. The Tribunal ruled that Mr. Jaulin and Mr. Fayek, both officers of Otis at the relevant times, would be permitted to give evidence but that Mr. McGraw, from Standard Research Consultants who had prepared a valuation report, could not be presented as a witness except to the extent, if any, justified in rebuttal to the presentations made by the Respondents at the Hearing. The Claimant presented only Mr. Jaulin as a witness and Mr. McGraw was called on briefly in rebuttal.

Otis Elevator Company and The Islamic Republic of Iran, Award No. 304–284–2 (29 Apr 1987), reprinted in 14 Iran-US CTR 283, 284, 291 (1988–I).

f)  Witnesses

1. 102.  The Tribunal next addresses an objection raised by the Respondents to the Claimant's witness list. The Tribunal received an English version of the witness list on 11 August 1986. The Registry notified the Claimant that, absent agreement of the arbitrating Parties, Article 17, Note 3, of the Tribunal Rules requires that witness list be submitted in both Farsi and English. The witness list was submitted in both languages on 20 August 1986 (Doc. 165). This was only 20 days before the Hearing as originally scheduled. Because this was less than 30 days before the Hearing, the Respondents objected to the witness list.

2. 103.  The general rule regarding witness lists is stated by Article 25, paragraph 2, which provides that

   If witnesses are to be heard, at least [thirty days] before the hearing each party shall communicate to the arbitral tribunal and to the other party the names and addresses of the witnesses he intends to present, the subject upon and the languages in which such witnesses will give their testimony.

3. 104.  There are special provisions in the Tribunal Rules, however, with respect to rebuttal witnesses. Article 25, Note 2, provides that

   The information concerning witnesses which an arbitrating party must communicate pursuant to paragraph 2 of Article 25 of the [Tribunal] Rules is not required with respect to any witnesses which an arbitrating party may later decide to present to rebut evidence presented by the other arbitrating party. However, such information concerning any rebuttal witness shall be communicated to the arbitral tribunal and the other (p. 629) arbitrating parties as far in advance of hearing the witness as is reasonably possible.

4. 105.  As noted in William J. Levitt and Government of the Islamic Republic of Iran, Award No. 297–2091, pp. 9–10 (22 Apr 1987), Note 2 contains a limited derogation from the general notice requirement of Article 25, paragraph 2, in favor of rebuttal witnesses called upon to rebut evidence presented at the Hearing or so soon before it that it is impossible to observe the normal period of notice. It cannot be construed to encompass witnesses addressing matters raised earlier in the proceedings. Indeed, such a construction would create an exception so large as to swallow the rule.¹⁹

5. 106.  Because the witnesses offered by the Claimant in the present case were not rebuttal witnesses, the witness list filed on 20 August 1986 was clearly late–filed. Any relaxation of this standard is likely to prejudice the Respondents and thus cannot be condoned. Consequently, the Tribunal held at the Hearing, and confirms in this Award, that it cannot accept the proffered witnesses.

6. 107.  Although refusing to admit the persons named by the Claimant in its late filing as witnesses, the Tribunal noted at the Hearing that any Party is free to choose the persons it wishes to present its case, including those not accepted by the Tribunal as witnesses and may receive information from them. See Economy Forms Corp. and Government of the Islamic Republic of Iran, Award No. 55–165–1 (14 June 1983). Such persons do not make the declaration that witnesses are required to make in accordance with Note 6(a) to Article 25 of the Tribunal Rules. The Tribunal, of course, may attach a different “weight” (Article 25, paragraph 6) to information provided by such persons as compared to the testimony of witnesses.

7. 108.  For the foregoing reasons, in assessing the evidence before it, the Tribunal does not consider the statements made at the Hearing on behalf of the Claimant by Mr. Stitt and Mr. Scott, who were both on the witness list, as those of witnesses, but does consider them as part of the presentation of the Case by the Claimant in the Hearing.

(p. 630) Harris International Telecommunications, Inc. and The Islamic Republic of Iran, Award No. 323–409–1 (2 Nov 1987), reprinted in 17 Iran-US CTR 31, 62–63 (1987–II) (other footnotes omitted).

1. 28.  Absent any convincing explanation by the Respondents, the Tribunal cannot accept a tactic that unveils previously–existing evidence at literally the last moments of the hearing, without prior notice having been given that the witness would testify, without showing that the evidence is presented in rebuttal, and when the documents the witness proffered had not been included with–or even referred to in–the Respondents' various prior submissions. For procedural reasons the documents cannot therefore be accepted. It might be added, however, that, given the nature of the issue and the conflicting evidence of the Parties with respect to it, it is far form certain that the matter would be clarified by further briefing or an additional hearing. Moreover, even if the evidence sought to be offered by Mr. Paksima were admitted and believed, its principal consequence would be to reflect adversely upon the credibility of various members of the Uiterwyk family. The tribunal need not resolve this thorny issue because, as shown below, it has adequate evidence upon which to determine the issue in this Case without relying upon the affidavits or testimony of the members of the Uiterwyk family. Accordingly, the Tribunal does not consider it procedurally sound or substantively necessary to admit the late proffered evidence by both sides, or to prolong the proceedings by further briefing or an additional hearing.

2. 29.  The Tribunal therefore declines to accept the documents offered by Mr. Ali Paksima at the end of the hearing, as well as the document offered by the Claimants in response. No further briefings or oral hearings are found to be necessary.

Uiterwyk Corporation and The Islamic Republic of Iran, Award No. 375–381–1 (6 Jul 1988), reprinted in 19 Iran-US CTR 107, 113–116 (1988–II).

The Tribunal refers to the Claimant's notification of witnesses filed on 18 September 1992 (Doc. 104) and to the submission from the Agent of the Government of Iran filed on 28 September 1992 (Doc. 106), objecting (p. 631) to the Claimant's notification and requesting the Tribunal to disallow the testimony of the designated witnesses, The Tribunal also notes the Claimant's submission of 1 October 1992, commenting on the Respondent's objections.

The Tribunal rules on the Parties' submissions as follows:

1. 1.  The Tribunal notes that Mr. Nasrollah Khosrowshahi and Mrs. Faith Lita Khosrowshahi allege to be shareholders in the Claimant company. Consequently, because Mr. and Mrs. Khosrowshahi have an interest in the outcome of the instant Case, they may be presented by the Claimant at the Hearing as part of the presentation of the Claimant's Case, but they will not be requested to make the declaration provided for in Note 6(a) to Article 25 of the Tribunal Rules.

2. 2.  The Tribunal notes that Mrs. Phyllis Ball is the corporate secretary of the Claimant company and Mr. Richard T. Blancato is the corporate attorney of the Claimant company. Accordingly, Mrs. Ball and Mr. Blancato may be presented by the Claimant as part of the presentation of the Claimant's Case, but they will not be requested to make the declaration provided for in Note 6(a) to Article 25 of the Tribunal Rules.

3. 3.  Mr. Walter L. Dougherty may testify at the Hearing as a witness, provided that he informs the Tribunal prior to or at the Hearing that he has no personal interest in the outcome of the instant Case.

Kaysons International Corporation and The Islamic Republic of Iran, et al., Case No. 367, Chamber Two, Order of 8 Oct 1992.

1. 3.  By telefax received 7 January 1993 the Claimants advised the Tribunal that “Mr. Osborn may not be able to be present in person” at the Hearing. In the same fax the Claimants substituted Mr. Theodore Liebman, architect, as a witness, for Mr. Osborn. According to the Claimants' “Mr. Liebman [would] testify concerning the signature of Mr. Golzar, the experience which Mr. Liebman had with Tehran Redevelopment Corporation (“TRC”) and the apparent authority which Mr. Golzar had to make binding decisions for TRC.”

2. 4.  Considering that the replacement of Mr. Osborn by Mr. Liebman, whose subject of testimony is broader than that of Mr. Osborn, does not comply with Article 25, Paragraph 2 of the Tribunal Rules, the Tribunal does not permit the substitution under that Rule.

(p. 632) Dadras International and The Islamic Republic of Iran, Case Nos. 213, 214, 215, Chamber Three, Order of 13 Jan 1993.

1. 3.  Mr. Theodore Liebman shall be allowed to present evidence as a rebuttal witness to the extent, if any justified in rebuttal to the presentations made by the Respondents.

Dadras International and The Islamic Republic of Iran, Case Nos. 213, 214, 215, Chamber Three, Order of 22 Jan 1993.

1. 33.  By their letters filed on 27 December 1991, the Claimants and the Respondent communicated their witness lists to the Tribunal, in accordance with Article 25, para 2 of the Tribunal Rules.…

Shahin Shaine Ebrahimi et al. and The Government of the Islamic Republic of Iran, Award No. 560–44/46/47–3 (12 Oct 1994), reprinted in 30 Iran-US CTR 170, 181 (1994).

1. 15.  Witness lists were filed by the Respondents on 30 November 1992 and by the Claimants on 30 December 1992. A facsimile from the Claimants listing their witnesses had, however, been received by the Tribunal on 24 December 1992.

2. 17.  By facsimile of 7 January 1993 (subsequently filed on 11 January 1993) the Claimants informed the Tribunal that one of their designated witnesses, Mr. John Paul Osborn, would not be able to testify at the Hearing, although he would provide an affidavit. The Claimants further notified the Tribunal of a substitute witness, Mr. Theodore Liebman, and submitted an affidavit by him. On 8 January 1993 the Respondents objected to the Claimants' original list of witnesses on the ground that it had not been filed thirty days before the Hearing, as required by the Tribunal Rules; to the substitution of Mr. Liebman for Mr. Osborn; and to the late filing of the affidavit by Mr. Liebman.

3. 18.  By Order of 13 January 1993, the Tribunal denied the Respondents' request that the Claimants' original list of witnesses be rejected. Noting that the English version of the Claimants' list of witnesses had been received by the Tribunal in facsimile form and communicated to the Respondents on 24 December 1992, and that the same list was subsequently filed in both English and Persian on 30 December 1992, the Tribunal decided that the witnesses (p. 633) identified on that list should not be barred from testifying at the Hearing.

4. 19.  A separate Order of the same date informed the Parties that the substitution of Mr. Liebman for Mr. Osborn as a witness did not comply with Article 25, paragraph 2 of the Tribunal Rules, because Mr. Liebman's testimony appeared to cover a broader range of subjects than Mr. Osborn's would have. The Tribunal further determined that the Liebman affidavit could not be admitted into evidence at that late stage of the proceedings.

5. 20.  By facsimile dated 14 January 1993, the Claimants objected to the Tribunal's ruling denying permission to substitute Mr. Liebman for Mr. Osborn and gave notice under Article 25, note 2 of the Tribunal Rules that to the extent matters were placed in issue by the Respondents to which Mr. Liebman could provide relevant rebuttal testimony, he would present such testimony at the Hearing.

6. 21.  On 19 January 1993 the Respondents noted that the Claimants had designated Messrs. Duve and Perry as witnesses and that these individuals had not previously presented affidavits to the Tribunal. They therefore designated Mr. Hashem Atifeh Rad as a potential rebuttal witness.

7. 22.  By Order of 22 January 1993 the Tribunal informed the Parties that Prof. Dadras would be allowed to present evidence as a Party witness, and that both Mr. Liebman and Mr. Rad would be allowed to present evidence as rebuttal witnesses to the extent justified by the Respondents' and Claimants' presentations.

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, 133–34 (1995).

1. b.  According to Article 25(2) of the Tribunal Rules, the names and addresses of the witnesses shall be communicated to the Tribunal and the other party at least thirty days before the hearing. The Respondent has notified the Tribunal and the other party of Mrs. Nabavi's name on 24 April 2000, when the deadline for submitting names of witnesses was on 18 April 2000. The Tribunal cannot accept Mrs. Nabavi as a witness because of the Respondent's untimely communication. Nevertheless, the Respondent is free to call Mrs. Nabavi as a rebuttal witness, if it wishes, in the manner explained in Note 2 to Article 25.

(p. 634) Frederica Lincoln Riahi and The Government of the Islamic Republic of Iran, Case No. 485, Chamber One, Order of 4 May 2000.

(3)  Tribunal Rules, Article 25(3)

… With the agreement of the Parties the hearing to be held on 11 and 12 March 1985 was rescheduled for 14 and 15 May 1985 and the Final Hearing was set for 18 and 19 June 1985. On 14 and 15 May 1985 Respondents Iran and NIOC did not appear for the scheduled Hearing. Moreover, the Iran-appointed Member of Chamber Three was not present. The Tribunal proceeded on 15 May 1985 for the limited purpose of hearing Claimant's expert witness Mr. Whitney. The testimony and the simultaneous translation of such testimony, including all questions and answers, was tape–recorded for use by the Tribunal and the Parties in this Case. At that Hearing Claimant requested that it receive in an Interlocutory Award its unnecessary costs of attending the 14 and 15 May 1985 Hearing. All remaining issues in the Case were scheduled for a Final Hearing to be held on 18 and 19 June 1985 with a possible continuation on 21 June 1985. The Final Hearing actually was held on 21, 22 and 23 June 1985 in the presence of all members of Chamber Three. All Parties appeared and presented oral argument.

Sedco Inc. and National Iranian Oil Company and The Islamic Republic of Iran, Award No. ITL 55–129–3 (28 Oct 1985) at 6, reprinted in 9 Iran-US CTR 248, 252 (1985–II).

1. 1.  This Decision resolves the request of the Claimant Flexi–Van Leasing, Inc. (“Flexi–Van”) for an additional award in its Case against the Respondent the Government of the Islamic Republic of Iran (the “Government”).

2. 3.  Flexi–Van argues that while the Tribunal has dismissed the claims against the “Government of the Islamic Republic of Iran” in the Award, it has not made any award as to Flexi–Van's claims against the “Islamic Republic of Iran,” the Respondent named in the caption of Flexi–Van's Statement of Claim. Accordingly, Flexi–Van requests that the Tribunal render an additional award as to claims presented against the “Islamic Republic of Iran.”

3. 8.  Further clarification as to who Flexi–Van considered the Respondent came at the Hearing, at which only the Government appeared as Respondent, when, according to the Minutes, Flexi–Van confirmed (p. 635) that [it] was asserting its claim solely against the Government of Iran.² Significantly, at the Hearing Flexi–Van submitted a document entitled “Basis of claim” in which it summarized the bases of its claim. See Award, p. 16. Flexi–Van stated that this document should be regarded as a clarification, not an amendment, of its claim. This document described four bases which allegedly supported Flexi–Van's claim. As to each of these four bases, Flexi–Van explicitly named only the Government as the responsible party. In particular, Flexi–Van alleged that the “Government of Iran” (i) had expropriated Flexi–Van's contractual rights by causing Star Line and Iran Express to breach the lease agreements; (ii) had interfered with Flexi–Van's contractual relations by preventing payments of amounts due under the lease agreement and return of equipment; (iii) is liable for the breach and repudiation of the lease agreements by Star Line and Iran Express; and (iv) was unjustly enriched through the retention and use of Flexi–Van's equipment. Thus, it is clear that these four bases constituted Flexi–Van's “claims presented in the arbitral proceedings” as referred to in Article 37, paragraph 1, of the Tribunal Rules and that the Government was the sole Respondent as to each of those four bases of claim.

Flexi–Van Leasing, Inc. and The Islamic Republic of Iran, Decision No. DEC 54–36–1 (18 Dec 1986) at 4, reprinted in 13 Iran-US CTR 324, 324–27 (1986–IV).

1. 5.  The Tribunal informs the Parties that it does not deem it necessary to make any arrangements for a tape–recording of the hearing. Any Party can make a stenographic record of the hearing in accordance with Article 25, paragraph 3, of the Tribunal Rules of Procedure and Note 4 to that Article.

Aram Sabet et al. and The Islamic Republic if Iran et al., Case Nos. 815, 816, and 817, Chamber Two, Order of 19 Nov 1996.

(4)  Tribunal Rules, Article 25(4)

On 2 December 1983, counsel for Ford Aerospace and Communication Corporation filed a request to participate in case A–16. In view of the fact that the same counsel had been permitted to participate in this case (p. 636) in accordance with Note 5 to Article 25 of the Tribunal Rules for GTE International Inc., one of the Respondents in case No. 582, the Tribunal did not deem it necessary to permit Ford Aerospace & Communication Corporation to participate in Case A–16.

The United States of America and The Islamic Republic of Iran (Case No. A/16), Bank Mellat and The United States of America (Case Nos. 582 and 591), Award No. 108–A–16/582/591–FT (25 Jan 1984) at 3, n 1, reprinted in 5 Iran-US CTR 57, 59 (1984–I).

1. 16.  On 11 December 1992 the Claimants objected to the inclusion in TRC's rebuttal brief of an extract from the testimony of a Mr. Rahman Golzar Shabestari at the hearing held before the Tribunal in Case No. 812. The Claimants requested that they be furnished with a copy of the complete testimony of Mr. Golzar in Case No. 812 in order to refute the conclusions drawn by the Respondents from the extract. By Order of 15 December 1992, the Tribunal decided that, in view of the confidential nature of the Tribunal's hearings, the transcript excerpt in question would not be admitted into evidence unless the Respondents submitted to the Tribunal no later than 30 December 1992 a written declaration by the Claimant in Case No. 812 agreeing to the release of Mr. Golzar's entire hearing testimony. No such declaration was filed by the Respondents, and the extract was not admitted into evidence.

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, 133 (1995).

(5)  Tribunal Rules, Article 25(5)

The Tribunal notes that the Claimant has filed, on 21 November 1983, a request for instructions concerning the form of its evidence.

Article 25(5) of the Tribunal Rules requires that “(e)vidence of witnesses may also be presented in the form of written statements signed by them” (emphasis added).

For present purposes, it will be sufficient for the Claimant to file unsigned copies of the deposition transcripts it wishes to submit. However, signed copies must be filed before the file in this case is complete.

Thomas Earl Payne and The Islamic Republic of Iran, Case No. 335, Chamber Two, Order of 12 Dec 1983. (p. 637)

The Tribunal notes Claimant's letter of 5 February 1986 requesting certain clarifications and permission to submit additional documents. In view thereof, the Tribunal hereby orders as follows.

1. 2.  Claimant may submit a sworn statement by Mr. Benziger, no later than 7 March 1986, in view of Mr. Benziger's inability to attend the Hearing. This statement must be submitted in both English and Farsi.

Chas T Main International Inc. and Khuzestan Water & Power Authority, Case No. 120, Chamber Two, Order of 14 Feb 1986.

1. 75.  With respect to these Affidavits, the Tribunal cannot accept as an excuse that the Claimant may have been misled by Article 25, paragraph 5, of the Tribunal Rules stating that “[e]vidence of witnesses may also be presented in the form of written statements signed by them”. Affidavits constitute documentary evidence which must be submitted in accordance with the time–limits set in the Tribunal's orders so that the other Party is able to respond. Article 25, paragraph 5, merely clarifies the admissibility of affidavits of witnesses, since not all national legal systems admit such written evidence.

Harris International Telecommunications, Inc. and The Islamic Republic of Iran, Award No. 323–409–1 (2 Nov 1987), reprinted in 17 Iran-US CTR 31, 52 (1987–IV).

(6)  Tribunal Rules, Article 25(6)

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: (p. 638)

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 20 Dec 1982, reprinted in 1 Iran-US CTR 455 (1981–82).

With respect to point (a), and Iran's reference to settlement negotiations held in August, 1981, a court cannot take account of that which one party proposes to another in a confidential manner in an effort to achieve a resolution of their disputes…

Iran-United States, Case A/1 (Issues, I, III and IV), Decision of 30 Jul 1982 at 3, reprinted in 1 Iran-US CTR 187, 490–191 (1981–82).

To support its claim for amounts retained as security for the payment of social insurance obligations, Claimant originally referred to a telex from its Iranian accountant stating that a clearance certificate had previously been issued by the Iranian Social Insurance Organization on 17 October 1979. Subsequent to the Hearing, Claimant obtained and submitted a copy of that clearance. In support of its allegation that the Claimant continues to have outstanding social insurance payment obligations, AEOI has submitted letters from the Social Insurance Organization announcing that Claimant and Woodward Noorany owe substantial amounts as specified in the letters. No mention is made of the clearance having been granted, no reference is made to any payments having been made in the years in question and the method used to calculate the amount alleged to be due is not explained.

While there is no doubt about the authenticity of either the clearance certificate presented by Claimant or the letters submitted by AEOI, they represent totally contradictory conclusions by the Social Insurance Organization which are impossible to reconcile. Given the fact that one conclusion was stated close in time to the events in issue and that the other was stated in the course of this litigation, and considering the general rule of evidence that contradictory statements of an interested party should be construed against that party, the Tribunal finds that the Claimant has obtained the clearance required by the Agreement and is entitled to payment of the amount retained under the social insurance guarantee.

(p. 639) Woodward–Clyde Consultants and The Islamic Republic of Iran, Award No. 73–67–3 (2 Sep 1983) at 15–16, reprinted in 3 Iran-US CTR 239, 248–49 (1983–II).

At the Hearing in these cases on 6–7 October 1983 Mr. Daniel Levitt, the attorney of the Government of the Islamic Republic of Iran, on behalf also of Rank Markazi Iran and Bank Mellat informed the Tribunal that he wished to submit as evidence some documents relating to the subsequent practice in the application of paragraph 2(B) of the Undertakings. He further informed the Tribunal that these documents were not immediately available to him but that they could be submitted to the Tribunal within one week.

The Tribunal finds it important that a Party submits written evidence well in advance of a Hearing so as to allow other Parties and the Members of the Tribunal to study such evidence before the Hearing and to discuss it in the course of the Hearing. However, in view of the importance of the instant cases for a large number of other cases before the Tribunal, the Tribunal finds it appropriate to accept said evidence despite the intended late filing of it.

The Government of the Islamic Republic of Iran is permitted to submit to the Tribunal on or before 17 October 1983 the further evidence referred to at the Hearing.

The Government of the United States of America, Manufacturers Hanover Trust Co., GTE International Inc., Crocker National Bank and Harris International Telecommunications, Inc. are invited to file with the Tribunal on or before 7 November 1983 any comments and rebuttal evidence that they would like to submit in respect of new evidence provided by the Government of the Islamic Republic of Iran.

The United States of America and The lslamic Republic of Iran, Case No. A/16, Bank Mellat and The United States of America et al., Cases Nos. 582 and 591, Full Tribunal, Order of 10 Oct 1983.

Iran submitted on 25 April 1983, inter alia, a Statement by Bank Tejarat dated 11 April 1983 concerning the movements on Ultrasystems' account with that bank from 1 August 1978 to 31 March 1979 and a bank statement with regard to Isiran's bank account. Isiran further submitted photocopies of a great number of cheques drawn on Ultrasystem's account between the middle of October and the end of November 1978 and bearing the signature of Mr. Fred C. Feupel, Ultrasystems' (p. 640) principal representative in Iran. Although it must be noted that, pursuant to the Tribunal's pre–hearing order, all evidence that the parties wished to rely on should have been submitted prior to the Hearing, the Tribunal decides in this case to admit this material as supporting evidence.

Ultrasystems Incorporated and The Islamic Republic of Iran, Award No. 89–84–3 (7 Dec 1983) at 2–3, reprinted in 4 Iran-US CTR 77, 78 (1983–III).

INA argues that the Tribunal has been furnished with insufficient information as to the basis of the Amin valuation, the principles on which it was undertaken and the documents and data on which it was based, for it to be accorded any evidential value. The Tribunal's Order of 21 January 1983 required production, inter alia, of the material which had been made available to Amin & Co., but no such material was filed and the Respondent contended at the hearing that it was too voluminous to be conveniently assembled. The Tribunal decided to admit the Amin Report as evidence but to take account of the lack of supporting documentation in assessing the evidential weight to be accorded to it.

INA Corporation and The Islamic Republic of Iran, Award No. 184–61–1 (13 Aug 1985) at 6, reprinted in 8 Iran-US CTR 373, 377 (1985–I).

Third, the Respondent has objected on grounds of irrelevance and prejudice to the filing by the Claimant of copies of a number of newspaper and magazine articles submitted as Exhibit 1 in the Claimant's Documentary Evidence filed on 3 January 1984. The Tribunal finds no need to exclude this evidence. As with any evidence, the Tribunal is able to assess its bearing on the case as well as its evidentiary value.

Sylvania Technical Systems Inc. and The Islamic Republic of Iran, Award No. 180–64–1 (27 Jun 1985) at 3, reprinted in 8 Iran-US CTR 298, 300 (1985–I).

Claimant's request to submit minutes of witness testimony heard by the Experts in Boston and/or statements of these witnesses is denied. The Tribunal decides that notes taken by assistant clerks of testimony given by witnesses before the Experts cannot be considered appropriate evidence. As to the submission of statements by the witnesses themselves, Claimant has offered no justification or excuse for its delay in submitting such statements. In view of the potential prejudice to respondents, the Tribunal cannot accept them at this late stage in the proceedings without such justification.

(p. 641) Chas T Main International, Inc. and Khuzestan Water & Power Utility, Case No. 120, Order of 14 Feb 1986.

1. 10.  Insofar as Iran's case might be interpreted as a request that the Full Tribunal lay down a uniform rule of evidence applicable to the establishment of corporate nationality, the Tribunal holds that the request does not pose a question concerning the interpretation or application of the Declaration. The questions raised by Iran relate to burden of proof, to the evidence required to establish to the satisfaction of the Tribunal the existence of the facts on which its jurisdiction is based, and to the weighing of such evidence by the Tribunal. These issues are obviously not questions concerning the interpretation or application of the Declaration, but, rather, relate to the application of the Tribunal Rules governing burden of proof and evidence. Article 24, paragraph 1, of the Tribunal Rules provides that “[e]ach party shall have the burden of proving the facts relied on to support his claim or defence”. Article 25, paragraph 6, states that “[t]he arbitral tribunal shall determine the admissibility, relevance, materiality and weight of the evidence offered”. These provisions are taken without change from the UNCITRAL Arbitration Rules, which Article III, paragraph 2, of the Declaration requires the Tribunal to follow in conducting its business, except to the extent modified by the States Parties or the Tribunal to ensure that the Declaration can be carried out effectively. Neither the Tribunal nor the States Parties have considered in necessary to modify any of these provisions. To the contrary, the Rules reflect generally accepted principles of international arbitration practice and contribute to the effective resolution of cases before the Tribunal.

Islamic Republic of Iran and United States of America, Case No. A/20, Decision No. DEC 45–A20–FT (10 Jul 1986), reprinted in 11 Iran-US CTR 271, 274 (1986–II).

Flexi–Van has requested that the Tribunal refuse to consider the evidence appended to the Respondent's Post Hearing Memorial. Submission of such evidence, Flexi–Van contends, was not authorized by the Tribunal, and considering it would be unfair and unwarranted in light of Tribunal practice and the Tribunal Rules of Procedure. The Government has not commented on this request.

The Tribunal admits all evidence submitted during the course of the proceedings since none was such as to cause any prejudice.

(p. 642) Flexi–Van Leasing Inc. and The Islamic Republic of Iran, Award No. 259–36–1 (13 Oct 1986) at 14, 15, reprinted in 12 Iran-US CTR 335, 344–45 (1986–III).

1. 75.  Although for these reasons the Tribunal is persuaded that Claimant's valuation forms a more credible basis for a determination of the fair market value of the six SISA rigs than the valuation offered by NIOC, nevertheless Claimant's appraisal must be approached with some caution. The task of the Tribunal is to appraise the value of these specific rigs on the evidence before it. In that process certain inferences may of course be drawn from rig values in the drilling industry in general. One of the most important elements on which to base the value of a particular rig, however, appears to be the operating condition of that rig at the valuation date. The only one of Claimant's expert witnesses who had personal knowledge of the SISA rigs during the five years preceding the appropriation is Mr. Thorne, who stated that the rigs were maintained in “first class operating condition,” consistent with SEDCO's operating philosophy and that the equipment was “top quality.” Other experts who have confirmed Mr. Thorne's appraisal have based their opinion on Mr. Thorne's assessment of the operating condition of the rigs. Their opinions on this point must be approached with the same caution as that of Mr. Thorne. Mr. Thorne is a leading officer of the Claimant company and the President of SISA. In that last capacity he was ultimately responsible for the maintenance of the rigs. Although the Tribunal in principle does not accept NIOC's objection to Claimant's experts as unreliable because of their alleged master–servant relationship with Claimant,²⁵ Mr. Thorne's close affiliation to Claimant and SISA could quite naturally have caused a certain subjectivity (which must be distinguished from bad faith) to taint his assessment.

Sedco Inc. and National Iranian Oil Company and The Islamic Republic of Iran, Award No. 309–129–3 (7 Jul 1987), reprinted in 15 Iran-US CTR 23, 49 (1987–II) (footnote omitted).

1. 67.  The virtual absence of documentary support for Mr. Buckamier's (p. 643) claim raises the issue what the probative value is of the Claimant's affidavit. The importance of this question makes it appropriate to elaborate on the considerations the Tribunal must take into account in weighing this kind of evidence. In a memorandum dated 17 February 1988 the Tribunal's distinguished former member and Chairman of this Chamber, the late Professor Virally, expressed these considerations as follows.

   The Tribunal has often been presented with notarized affidavits or oral testimony of claimants or their employees. [Rare] are the cases where such an issue does not arise. The probative value of such written or oral declarations is usually hotly debated between the parties, each of them relying on the peculiarities of its own judicial system. The U.S. parties insist that such evidence must be recognized with full probative value, as would be the case before the U.S. courts. The Iranian parties contend that such declarations are not admissible as evidence under Iranian law, because they emanate from persons whose interests are at stake in the proceedings, or who are, or were, dependent upon the claimants.

   The Tribunal has, in the past, adopted a pragmatic and moderate approach towards this problem by deciding, on a case by case basis, whether the burden of proof has been properly sustained by each contending party, taking into consideration those declarations together with all other evidence submitted in the case, the particulars of the case and the attitude of both parties in the proceedings. This pragmatic approach does not always seem to have been well understood, since the same debate continues to arise, often in the same terms, in case after case

   As an international Tribunal established by agreement between two sovereign States, the Tribunal cannot, in the field of evidence as in any other field, make the domestic rules or judicial practices of one party prevail over the rules and practices of the other, in so far as such rules and practices do not coincide with those generally accepted by international Tribunals. In this context, it can be observed that the declarations by the parties, or employees of the parties, in the form of notarized affidavits or oral testimony, are often submitted as evidence before such Tribunals. They are usually accepted, but, cautiously, in a manner generally comparable to the attitude of this Tribunal as just described.

   It is clear that the value attributed to this kind of evidence is directly related not only to the legal and moral traditions of each country, but also to a system of sanctions in case of perjury, which (p. 644) can easily and promptly be put into action and is rigorous enough to deter witnesses from making false statements. Such a system does not exist within international Tribunals and recourse to the domestic courts of the witness or affiant by the other party would be difficult, lengthy, costly and uncertain. In the absence of any practical sanction (other than the rejection by the international Tribunal of the discredited evidence), oral or written evidence of this kind cannot be accorded the value given to them in some domestic systems. Also it cannot be discounted that the ethical barriers which prevent the making of statements not in conformity with the truth before national courts will not have the same strength in international proceedings, notably when the other party is a foreign government, the conduct of which was severely condemned by public opinion in the country of the other party.

   On the other hand, it must be recognized that in many claims filed with the Tribunal, claimants face specific difficulties in the matter of evidence, for which they are not responsible. Such is particularly the case when U.S. claimants were forced by revolutionary events and the chaotic situation prevailing in Iran at the time, to rush out of Iran without having the opportunity or the time to take with them their files, including documents which normally should be submitted as evidence in support of their claims. In many instances, the situation in Iran between the establishment of the Revolutionary Islamic government on 11 February 1979 and the taking of the American Embassy on 4 November 1979 was not sufficiently settled to permit a return in Iran or, in case of return, … to recover the files left behind. After 4 November 1979, and up to the critical dates of 19 January 1981 and 19 January 1982, collection of documents in Iran by U.S. nationals was almost impossible. Obviously, these facts made it very difficult for the claimants who did not keep copies of their files outside Iran to sustain the burden of proof in the ways which would be expected in normal circumstances. In view of these facts, the Tribunal could not apply a rigorous standard of evidence to the claimants without injustice. In adopting a flexible approach to this issue, however, it must not lose sight of its duty to protect the respondents against claims not properly evidenced. At any rate, it must be satisfied that the facts on which its awards rely are well established and fully comply with the provisions of … its Rules of procedure.

   In order to keep an equitable and reasonable balance between those contradictory requisites, the Tribunal must take into consideration (p. 645) the specific circumstance of each case, as well as the elements which can confirm or contradict the declarations submitted by the Claimants. The list of such elements is practically unlimited and varies from case to case. The absence or existence of internal contradictions within these declarations, or between them and events or facts which are known by other means, is obviously one of them. Explicit or implied admission by the other party is another, as well as the lack of contest or the failure to adduce contrary evidence, when such evidence is apparently available or easily accessible. In relation to this last element, however the Tribunal must not disregard the fact that destruction due to revolutionary events or to the war, the departure from Iran of persons responsible for the conduct of the business at the time of the facts referred to in the claim, changes in the direction or the management of the undertakings concerned, can also impair the Respondents' ability to produce evidence. It is often a delicate task to determine if and to what extent respondents would be responsible for such a difficulty.

W Jack Buckamier and The Islamic Republic of Iran, Award No. 528–94 1–3 (6 Mar 1992), reprinted in 28 Iran-US CTR 53, 74–76 (1992).

(1)  Closure of the hearing–Article 29(1)

Article 29(1) provides the arbitral tribunal with a simple procedural mechanism to close the hearing phase of arbitration, if one has been initiated.¹⁰³ Before closing the hearing, the provision encourages the arbitral tribunal to inquire at the appropriate time whether any party has additional evidence, oral or written, to proffer in support of its claim. If a request to submit additional evidence is made, the arbitral tribunal will need to determine whether there is a legitimate need to further develop a material aspect of the party's case. If no request for continuation is made, or the request is deemed to be frivolous or an abusive attempt to delay the proceedings, the arbitral tribunal is authorized to “declare the hearings closed.”¹⁰⁴ For clarity's sake, the presiding arbitrator may wish to make the declaration orally at the end of the scheduled hearing period.¹⁰⁵

The arbitral tribunal's declaration of closure, pursuant to Article 29(1), brings finality to the hearing proceedings only and has no other legal effect (p. 651) outside this area.¹⁰⁶ This fact is important in arbitration under the UNCITRAL Rules where the hearing proceedings and the written submissions proceedings generally move along separate procedural tracks. For example, if justified, the arbitral tribunal may request additional written submissions by the parties on a specific point in issue after closure of the hearing.¹⁰⁷ According to the prevailing practice, issues surrounding post–hearing submissions are resolved pursuant to Articles 15, 22, 23, 25(6) and 28, which regulate the admissibility of documentary evidence.¹⁰⁸ Just as the closure of hearings has no legal significance for the admissibility of post–hearing submissions, the admission of post–hearing submissions “does not lead to a reopening of the hearing, but only to a decision on the admissibility of the late–filed documents.”¹⁰⁹

The decision to close the hearings is a discretionary matter for the arbitral tribunal.¹¹⁰ In cases in which a party appears to be abusing the hearing process, it may be especially useful for the arbitral tribunal to establish the hearing's formal endpoint to preclude any frivolous requests for additional hearings. It is arguable that in other cases the need for formal application of Article 29(1) may be less pressing and the arbitral tribunal may decide to conclude the hearing without formal closure.¹¹¹ This approach injects flexibility into the arbitral process, thereby reserving as a formal matter the possibility for the tribunal to call for additional hearings, should the need materialize during the deliberations.¹¹² In general, however, the hearing should end with a formal closure.

(p. 652) (2)  Reopening of the hearing–Article 29(2)

Article 29(2) confers authority upon the arbitral tribunal to reopen a hearing. This provision was included in the UNCITRAL Rules with an eye towards enforcement of the arbitral award. The Committee expressed concern that the enforceability of awards under the New York Convention might be jeopardized in cases where a fair resolution of an arbitral dispute required an additional hearing but none was provided.¹¹³

The reopening of a hearing may occur only if the arbitral tribunal finds that such action is warranted by “exceptional circumstances.”¹¹⁴ The UNCITRAL Rules provide no definition of the meaning of this phrase. However, it is submitted that a reopening may be appropriate in at least two scenarios. First, the arbitrators may realize during post–hearing deliberations that a certain point of law or fact has not been developed sufficiently in either the submissions or the hearing and thus requires further clarification through an additional hearing.¹¹⁵ Second, newly discovered evidence might emerge which has a material impact on the case and which requires further exposition in an additional hearing. Under both scenarios, a reopening of the hearing may be necessary to ensure fairness and equality in the arbitral process, consistent with the arbitral tribunal's obligations under Article 15(1) of the Rules.¹¹⁶ It should be noted that while the authority to reopen a hearing extends through the deliberative phase of the arbitration, it ceases simultaneously with the making of the award.¹¹⁷ Thus, Article 29(2) provides a narrow procedural mechanism for reopening the hearing phase of an arbitration.¹¹⁸

Of the handful of requests to reopen hearings made during the long history of the Iran-US Claims Tribunal, only a fraction have been granted and only for very limited purposes.¹¹⁹ In the most significant case of this kind, (p. 653) Dadras International, the Tribunal granted a request to reopen a hearing under what it deemed an “unprecedented situation.”¹²⁰ The primary dispute in the case centered on whether a contract had been formed between Mr. Dadras, the claimants' representative, and Mr. Golzar, then managing director of the respondent company. Very early in the case, the respondents challenged the validity of the contract, claiming that Mr. Golzar's signature on it was a forgery, but failed to present Mr. Golzar's testimony at the hearing. Many months into deliberations, and over a year and a half after the hearing took place, the respondents filed a letter by the Iranian Agent, including an affidavit by Mr. Golzar, in which he attested that the signature on the contract was not his. The admission of the new evidence was followed by post–hearing pleadings on the forgery issue and a request by the Iranian Agent to reopen the hearings.

For the first time in thirteen years, the Tribunal granted the request and reopened the hearings for the limited purpose of obtaining testimony and cross–examination of Mr. Golzar and Mr. Dadras.¹²¹ The “exceptional circumstances” on which the decision rested were three–fold. First, the Tribunal believed that if Mr. Golzar's statement were true, it would result in dismissal of the claim. Second, as Mr. Golzar was the alleged signatory to the contract, the Tribunal maintained that he had direct knowledge of the crucial transaction at issue. Third, the Tribunal found that the disposition of the dispute turned primarily on the credibility of the main players, Mr. Golzar and Mr. Dadras. These reasons, the Tribunal explained, underscored the need to submit the two key players to examination before the Tribunal.¹²²

The American Arbitrator, Judge Allison, objected strongly to the decision. He argued that a reopening was not justified in light of the three factors that the Tribunal traditionally had considered in evaluating such requests: the justification for the delay in presenting the evidence at issue, the need for (p. 654) orderly proceedings, and the likelihood of prejudice to the other party.¹²³ As to the first factor, Judge Allison asserted that because the respondents had been on notice of the relevance of Mr. Golzar's testimony since the inception of the case and had access to him during much of that time, the respondents' delay in producing Mr. Golzar's affidavit was inexcusable at this very late stage in the proceedings. Second, Judge Allison claimed that the reopening of the hearing disrupted the orderliness and efficiency of arbitral procedures, especially where claimants before the Tribunal traditionally had been afforded prompt and fair treatment of their claims.¹²⁴ Third, Judge Allison insisted that the reopening of the hearing would prejudice the claimant by causing substantial additional expense and delay.¹²⁵

As the above exchange of views demonstrates, the decision to reopen the hearings in Dadras International was not without controversy. While the potential impact of Mr. Golzar's affidavit on the outcome of the case was quite clear, the circumstances under which this statement arose, at a very late stage in the proceedings, called into doubt the freshness of the evidence. Without a detailed and convincing explanation as to why certain evidence could not have been presented in the pleadings or during the main hearing in the case, a request for reopening should be approached skeptically. In the end, the Tribunal found Mr. Golzar's testimony at the second hearing unpersuasive and determined that his signature on the contract bound the respondent to its terms.¹²⁶

Further, the proceedings in Dadras clarified the relationship between Article 29(2) and Article 15(2) of the UNCITRAL Rules, as adopted by the Tribunal, in the context of the reopening of a hearing. During the proceedings, both the Iranian Agent and Judge Aghahosseini took the position that in addition to Article 29(2), Article 15(2)–which provides the parties the full opportunity to present their case at a hearing–provided an independent basis for reopening the hearings in the case.¹²⁷ Accordingly, the Iranian camp (p. 655) proposed that by admitting Mr. Golzar's affidavit as evidence, the Tribunal had reopened the case and thus revived the respondents' automatic right to a hearing under Article 15(2), which had been extinguished upon closure of the hearings. The Tribunal disagreed with this argument, finding that Article 15(2) did not apply to the reopening of the hearing.¹²⁸ This is indeed the only correct response, as a ruling otherwise would permit Article 15(2)'s general guarantee of a hearing to swallow the requirement in Article 29(2) that “exceptional circumstances” be present before reopening the hearing.

(1)  Tribunal Rules, Article 29(1)

1. 24.  At the end of the Hearing, the Chairman, following the adopted practice of the Chamber and in accordance with Article 29, paragraph 1, of the Tribunal Rules, closed the proceedings in these Cases.¹¹

2. 2.1.  Admissibility of Late–Filed Documents: Documents Submitted at the Hearings and Post–Hearing Submissions

3. 48.  The Tribunal notes that, according to its practice reflected in Harris International Telecommunications, Inc. and The Islamic Republic of Iran, et al., Partial Award No. 323–409–1, paras57–75 (2 Nov 1987), reprinted in 17 Iran-U.S. C.T.R. 31, 45–52, Articles 15, 22, 23, and 28 of the Tribunal Rules are the primary rules regulating the status of late–filed documents. Generally, based upon Article 22, the Tribunal considers and decides which further submissions in addition to the statement of claim and the statement of defence, are to be required from the parties in each case and sets forth the schedule for communicating such statements. Moreover, Article 28 gives the Tribunal the authority to make an award based on the evidence before it, if a party that has had the opportunity to file documentary evidence fails to file within the established period of time, and fails to show sufficient reason for its nonconformity. This rule equally applies to the situation in which a party has properly filed its documents, but subsequently tries to submit (p. 656) additional, unauthorized material for inclusion in the record of the case.

4. 49.  Furthermore, on the basis of Article 15, both parties to the case have to be treated equally. This means that both parties to the case are entitled to have an equal opportunity to present written submissions and to respond to each other's submissions. This also means that the parties must have an equal opportunity to go through the evidence and the arguments submitted by the other party, and to prepare their own position and arguments in advance of the hearing.

5. 50.  Chamber One has taken a strict stance on these matters: no new evidence is permitted prior to the hearing unless the Tribunal finds that it is justified by exceptional circumstances and is filed no later than two months before the hearing in the case. Moreover, as a matter of routine in its orders scheduling a hearing the Chamber advises the parties that any party is free to make whatever arguments it wishes at the hearin; however, parties may not introduce new documents into evidence absent the Tribunal's permission. Such permission normally is not granted except for rebuttal evidence introduced to rebut evidence produced at the hearing.

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, 282, 287 (1997).

(2)  Tribunal Rules, Article 29(2)

On 15 September 1995, the Deputy Agent of the Islamic Republic of Iran filed a letter (Doc. 176) in which he, inter alia, requested the Tribunal to permit the Respondent to submit a reply to the filing made by the Claimants on 11 August 1995 (Docs. 171 to 175). The Deputy Agent also requested that a further hearing be held. On 20 September 1995, the Claimants filed their comments on the Deputy Agent's request (Doc. 177).

(p. 657) Having regard to these submissions, the Tribunal decides as follows:

1. 2.  With regard to the request of a hearing, the Tribunal requests the Parties to appear before Chamber One of the Tribunal for a Hearing which is scheduled to take place on 17 and 18 January 1996 at Parkweg 13, The Hague, starting on 17 January 1996 at 9.30 a.m.

The Tribunal draws the attention of the Parties to the following:

1. (a)  The subject matter of the Hearing is limited solely to the question of the alleged forgery and what impact the use of the allegedly forged documents would have on the Case.

2. (b)  The Tribunal will not permit the introduction of new documents in evidence prior to the Hearing.

3. (c)  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 at the Hearing.

4. (d)  With respect to witnesses, the Tribunal reminds the Parties of the requirements of Article 25 of the Tribunal Rules.

Vera–Jo Miller Aryeh et al. and The Islamic Republic of Iran, Case Nos. 842, 843 and 844, Chamber One, Order of 20 Sep 1994.

1. 1.  Reference is made to the Request by the Agent of the Islamic Republic of Iran filed on 27 May 1994 for the reopening of the Hearing in these Cases and to the objection of the Claimants filed on 10 June 1994.

2. 2.  The Tribunal notes that the post–Hearing submission of an affidavit by Mr. Golzar and the subsequent acceptance of that affidavit into the record, as well as the evidence which was admitted by order of 23 February 1994 and through the submission scheduled by the Tribunal, has introduced new material into the record.

3. 3.  The Tribunal notes further that it is now confronted with directly conflicting and irreconcilable statements from the two alleged signatories to the contract. The Tribunal considers that its task to determine which version of events is more accurate can better be accomplished by observing and examining Messrs. Golzar and Dadras in each other's presence at a hearing.

4. 4.  The Tribunal hereby determines that exceptional circumstances exist such that the Hearing in these Cases should be reopened in accordance with Article 29, paragraph 2, of the Tribunal Rules, for (p. 658) the sole and limited purpose of hearing the testimony of Messrs. Rahman Golzar Shabestari and Aly Shahidzadeh Dadras. Because of the advanced stage of deliberations and the procedural history of these Cases, in the interests of procedural orderliness the Tribunal will not reopen the Hearing for any other than this very limited purpose.

5. 5.  A Hearing is scheduled to take place on 20 October 1994 at 9:30 a.m. at Parkweg 13, The Hague, The Netherlands.

6. 6.  The Parties are hereby informed that in the interests of orderliness and fairness to both Parties, the following conditions will apply at the Hearing:

7. 1. (i)  The object of inquiry by the Tribunal will be the authenticity of Mr. Golzar's signatures on the Contract dated 9 September 1978 and the letter dated 27 August 1978. Questions and answers are to be confined to that subject.

   2. (ii)  The proceedings will be confined to the subject outlined in para 6(i) above and will be limited to:

      • •  testimony by Mr. Golzar and Mr. Dadras;

      • •  cross–examination of Mr. Golzar by the Claimants and Mr. Dadras by the Respondent;

      • •  examination of Mr. Golzar and Mr. Dadras by the Tribunal;

      • •  opening and closing remarks by Counsel for Claimants and Respondents.

   3. (iii)  No additional witnesses, rebuttal witnesses or interested parties will be permitted to testify.

   4. (iv)  The Parties will not be required or permitted to file additional pleadings either before or after the Hearing.

The Tribunal will consider inadmissible any document or testimony containing new material.

Dadras International and The Islamic Republic of Iran, Case Nos. 213 and 215, Order of 22 Jul 1994, reprinted in 30 Iran-US CTR 104, 104–05 (1994).

1. 27.  In short, the Tribunal consistently has denied requests to reopen in the few prior cases in which such requests have been made. In each instance, the Tribunal looked primarily to three factors–the justification for the delay in presenting the evidence at issue, the need for orderly proceedings, and the likelihood of prejudice to the other party–to decide whether reopening was appropriate. Applying these three considerations to the facts of the instant matter, it (p. 659) seems to me obvious that Respondents' request should be denied. First, the justification advanced by Respondents for the delay in proffering Mr. Golzar's testimony is entirely unpersuasive. Respondents have been on notice of the possible relevance of Mr. Golzar's testimony since the earliest days of these Cases and have had knowledge of his whereabouts, and access to him, for much of the period that these Cases have been pending. Moreover, the Government of Iran had Mr. Golzar under oath, and subject to cross–examination on the very matters relevant to their forgery defence in these Cases, during the Golshani Hearing. Inexplicably, its counsel failed to ask him the key question.

2. 28.  The only purported justification for the delay offered in Mr. Nobari's letter is that Mr. Golzar “was Iran's adversary” in Golshani and that therefore “Iran had reasons to believe that he would not cooperate with it.” This explanation is patently inadequate for at least two reasons. First, all that is required by Article 15(1) and the Tribunal's precedents is that a party have a meaningful opportunity to present its case, not that it be assured of a particular result. Respondents had ample opportunity to solicit Mr. Golzar's testimony during the twelve–year period between 1982 and 1993, and the fact that they may have refrained from doing so out of concern as to his “cooperation” cannot relieve them of the burden of trying. Second, even under Respondent's theory Mr. Golzar ceased to be an “adversary” in Golshani on 2 March 1993, the day that the Award in that case was issued; yet Respondents nonetheless did not contact Mr. Golzar until nearly a year later and even then, according to Respondents, the encounter arose purely by chance and not through the efforts of their own. Thus, the excuse that Mt. Golzar was “Iran's adversary” simply does not hold up under scrutiny.

3. 29.  Another factor identified in the Tribunal's precedents as relevant to requests to reopen is the orderliness of the Tribunal's proceedings. This body's precedents rightly recognize that the parties that appear before it are entitled to a fair and adequate opportunity to present their cases, a dictate that was fully satisfied in the pleading and Hearing phases of these Cases. However, there is a further interest that must also be observed–namely, the protection of the procedures and efficiency of the Tribunal itself–if justice is to be served…. Indeed, the latter precept is inherent in the fundamental principle of equality of treatment embodied in Article (p. 660) 15(1) of the Tribunal's Rules. As explained by Judge Mosk more than a decade ago,

   A Tribunal having thousands of cases is far different than an international arbitration involving only one case. The claimants and respondents before this Tribunal are entitled to have cases heard and decided in a prompt, efficient, and fair manner, in accordance with Tribunal rules and the law. Long delayed and expensive proceedings in which parties are not accorded equal treatment create much greater injustice than the failure to permit unlimited means and time to establish every fact in a particular case.

   Concurring Opinion of Richard M Mosk in Ultrasystems Inc. and The Islamic Republic of Iran, Partial Award No. 27–84–3 (4 March 1983), reprinted in 2 Iran-U.S. C.T.R. 114, 123. The need for orderliness and efficiency in this Chamber's proceedings weighs heavily against the granting of Respondents' belated request to reopen.

4. 30.  A further factor identified in the cases–prejudice to the other party–likewise speaks strongly against granting Respondents' request to reopen. The Claimants in these Cases stated in their objection to Respondents' request that the reopening of the Hearing will cause Claimants to incur “substantial further expense and delay.” The element of delay is already obvious. To substantiate their contention as to expense, Claimants submitted on 26 May 1994 a “Bill of Costs” showing that the proceedings related to the Golzar affidavit had, as of that date, cost the Claimants more than $94,000 in legal fees and expenses.

5. 31.  Even more fundamentally, the Claimants in these Cases, like all parties who appear before this Tribunal, have a right to expect the opposing party to present its case in the pleadings and at the Hearing, where it can be subjected to effective challenge, and not at some later time of its own choosing. Today's Order frustrates that proper expectation, and in the process creates a perverse incentive for future parties who may perceive delay as being to their strategic advantage.

Dadras International and The Islamic Republic of Iran, Case Nos. 213 and 215, Order of 22 Jul 1994, Dissenting Opinion of Richard C Allison (25 Jul 1994), reprinted in 30 Iran-US CTR 112, 118–20 (1994).

1. 53.  The key criterion in deciding whether to reopen a hearing under Article 29, paragraph 2 is whether the Tribunal finds “exceptional (p. 661) circumstances” to be present–a finding that had never before been made by the Tribunal in any case in its 13–year history. However, the Tribunal in the present Cases considered that it faced an unprecedented situation, and one unlikely to recur. The Tribunal believed that this derived from three factors. The first factor was the nature of the allegations made by Mr. Golzar, allegations that directly contradicted the Claimants' case and–if found to be true by the Tribunal–would lead to the dismissal of the claim and the characterization of Prof. Dadras as the perpetrator of an attempted fraud upon an international tribunal. The second factor was the identity of Mr. Golzar as the alleged signatory to the Contract, and therefore as the one person, besides Prof. Dadras, who could be expected to hold direct knowledge of and who was most intimately involved with the transaction in question. The third factor was that the disposition of these Cases rested heavily on the credibility of the main players. Therefore, the Tribunal considered it crucial to submit the two key players to cross–examination in each other's presence. For these reasons, the Tribunal decided to reopen the Hearing in these Cases under Article 29, paragraph 2 of the Tribunal Rules.

2. 56.  The Tribunal concludes that Article 15, paragraph 2 is primarily applicable to the situation where there has not yet been a hearing and one of the parties requests one. The right of the parties to request a hearing under Article 15, paragraph 2 is not, however, an absolute right. For example, in World Farmers Trading, Inc. v. Government Trading Corporation, et al., Award No., 428–764–1 (7 July 1989), reprinted in 22 Iran-U.S. C.T.R. 204, 209, the Tribunal held that although Article 15, paragraph 2 of the Tribunal Rules states that a party may request a hearing “at any stage of the proceedings,” “[t]his provision should be interpreted, in light of the particular circumstances of each case, to mean that Hearings are to be held upon the reasonable request of a party made at an appropriate stage of the proceedings.” This interpretation of Article 15, paragraph 2 was followed in Tchacosh Company, Inc., et al. and The Government of the Islamic Republic of Iran, et al., Award No. 540–192–1, para 21 (9 December 1992), reprinted in 28 Iran-U.S. C.T.R. 37, 380, in which the Tribunal refused to grant the claimant's request for a hearing, saying that the request had not been made at an “appropriate time” because it was made more than one year after the Tribunal had informed the Parties of its intention to take a decision on jurisdiction on the basis of the written evidence before it.

(p. 662)

3. 57.  Thus even where no hearing has been held, Article 15, paragraph 2 does not oblige the Tribunal to accede to any request by a party for a hearing. The applicable criteria in evaluating each request are whether the request is both reasonable and made at an appropriate stage of the proceedings. In a context such as the present, where a Hearing has already been held, the reasonableness of the request and the appropriateness of the timing become even more important because the disruption of the arbitral process is that much greater and because the parties have already had an extensive opportunity to present their cases.

4. 64.  For the foregoing reasons, the Tribunal is of the opinion that the only Article of the Tribunal Rules applicable to the present circumstances is Article 29, paragraph 2, which it invoked in its Order dated 22 July 1994 reopening the Hearing in these Cases.

Dadras International and The Islamic Republic of Iran, Award No. 567–213/215–3 (7 Nov 1995), reprinted in 31 Iran-US CTR 127, 142–43, 145 (1995).