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Part VI The Award, Ch.21 Decisions

David D. Caron, Lee M. Caplan, Matti Pellonpää

From: The UNCITRAL Arbitration Rules: A Commentary (1st Edition)

David D. Caron, Matti Pellonpää, Lee M. Caplan

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Content type:: Book content

Product:: International Commercial Arbitration [ICMA]

Series:: Oxford Commentaries on International Law

Published in print:: 23 March 2006

ISBN:: 9780199297597

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(p. 749) Chapter 21 Decisions

1 Introduction 749
2 Decisions–Article 31 750
1. A Text of the UNCITRAL Rule 750
2. B Commentary 750
  1. (1) Awards and Other Decisions by Majority Vote–Article 31(1) 750
  2. (2) Decision–Making on Procedural Questions–Article 31(2) 756
  3. (3) Confidentiality of Deliberations–Article 31, Note 2 of the Tribunal Rules 756
3. C Extracts from the Practice of the Iran-US Claims Tribunal 769
  1. (1) Tribunal Rules, Article 31(1) 769
  2. (2) Tribunal Rules, Article 31(2) 774
  3. (3) Tribunal Rules, Article 31, Note 2–Confidentiality of Deliberations 775
4. D Extracts from the Practice of NAFTA Tribunals 785
5. E Extracts from the Practice of Ad Hoc Tribunals 785

1 Introduction

At end of the day, perhaps most important to the arbitral process are the rules governing how a tribunal's decision is made. Article 31 of the UNCITRAL Rules sets forth the basic rules for the degree of consensus required when the arbitral panel decides official matters. Paragraph 1 establishes the general principle that “any award or other decision” is subject to the rule of majority voting. Paragraph 2 provides that the presiding arbitrator may decide procedural matters on his own where a majority opinion cannot be formed or where the members of the tribunal have authorized him to act on behalf of the tribunal. Such decisions on procedure are subject to revision by the tribunal. Although not governed expressly by any provision of the Rules, it is a generally accepted principle of international arbitration that the deliberations of the tribunal shall be kept secret, save for extreme circumstance where disclosure is compelled in the interest of justice.

(p. 750) 2 Decisions–Article 31

A Text of the UNCITRAL Rule¹

Article 31 of the UNCITRAL Rules provides:

1. When there are three arbitrators, any award or other decision of the arbitral tribunal shall be made by a majority of the arbitrators.
2. In the case of questions of procedure, when there is no majority or when the arbitral tribunal so authorizes, the presiding arbitrator may decide on his own, subject to revision, if any, by the arbitral tribunal.

B Commentary

(1) Awards and other decisions by majority vote–Article 31(1)

(a) General comments

Article 31 does not address decision–making by a sole arbitrator, as that task is straightforward and simple enough.² Reaching agreement among three members of an arbitral tribunal may be decidedly more complicated, however.³

Article 31(1) requires an arbitral tribunal comprised of three arbitrators to decide by majority rule. This means that at least two out of the three arbitrators must agree on an award or decision for it to bind the parties.⁴ The (p. 751) majority voting requirement applies broadly. By adding the words “other decisions” to the Final Draft, the drafters made clear that a voting majority is required not only in determining the outcome of a proceeding (the award), but also as to all matters relating to the tribunal's official functions.⁵ This broad scope, however, must be viewed simultaneously as somewhat limited by the scope of Article 31(2), which authorizes the presiding arbitrator under certain circumstances to decide procedural matters, subject to the tribunal's revision. The rule in Article 31(1) allows a majority to be formed by any combination of tribunal members; the agreement of the presiding arbitrator is not required for an award or decision to be binding.⁶

The question of what happens when the arbitrators are unable to form a majority was debated extensively by Committee negotiators. One delegate proposed that when the arbitrators fail to make an award by majority decision, “they should communicate that fact to the appointing authority which would then appoint new arbitrators.”⁷ Other delegates quickly rejected this proposal as rendering the Rules “too cumbersome” for the parties and redundant in light of other provisions of the Rules covering an arbitrator's failure to act.⁸ Rather, the main debate centered on whether the presiding arbitrator should be given a decisive role in ending a stalemate among the arbitrators. Some delegates proposed that the UNCITRAL Rules, like the ICC Arbitration Rules and other arbitration rules, should empower the presiding arbitrator of the tribunal to cast the deciding vote.⁹ Other members rejected (p. 752) this proposal, arguing that such authority would create an all–powerful chairman capable of rendering “extreme awards.”¹⁰ Still others expressed concerns that investing the presiding arbitrator with deadlock–breaking authority would reduce the party–appointed arbitrators to “mere assessors,” thus degrading the consultative process.¹¹

The Committee ultimately agreed that a decision–making impasse would depend on the type of issue presented to the arbitral tribunal. As discussed below, in limited situations, Article 31(2) permits the presiding arbitrator to act unilaterally with respect to questions of procedure.¹² With respect to all other situations, Article 31(1) requires, subject to any mandatory provisions of the governing arbitration law, that the arbitrators engage in deliberations until a majority is formed.¹³

On the practicalities of applying the majority rule, Professor Sanders explains that arbitrators are “forced to continue their deliberations until a majority, and probably a compromise solution, has been reached.”¹⁴ A “compromise solution” requires the presiding arbitrator to make concessions to the other arbitrator who forms the majority with respect to the terms of the award. For example, where monetary compensation is awarded, the amount of the award may be increased or decreased by the presiding arbitrator so as to gain the concurrence of one of the party–appointed arbitrators. Indeed, it is the amount of damages, rather than the legal questions of jurisdiction or liability, which requires accommodation to form a majority. While potentially a means of decision–making less bound to application of the law, the requirement of majority rule in Article 31(1) does present important advantages. First, majority rule protects the parties against the extreme views (p. 753) of a presiding arbitrator by requiring the majority to reach common, and perhaps more reasonable, ground.¹⁵ Second, a majority award is arguably more legitimate and thus more authoritative than one made unilaterally by the presiding arbitrator.¹⁶

The Iran-US Claims Tribunal has served as a unique laboratory for studying the majority vote rule.¹⁷ Early in the Tribunal's history during the adoption of the Tribunal Rules, Iran expressed concerns about the inflation of amounts awarded against Iran if the presiding arbitrator sought to accommodate the American arbitrator's position. The Iranian arbitrators proposed modifying Article 31 to permit the presiding arbitrator to determine the amount of compensation sought in the event of a dispute.¹⁸

The proposal was rejected by the Full Tribunal, although in practice there was a dynamic inclining toward compromise in some cases. As two well–informed observers have noted, the respective chairmen of the Tribunal's Chambers “usually strove in deliberations to reach decisions agreeable to at least one of the two arbitrators, and judges did indeed compromise and modify their positions in order to form a majority.”¹⁹

To the extent that awards against Iran were inflated, the Iranian arbitrators were arguably responsible in part. In virtually every case that resulted in an award against Iran, it was clear that the Iranian arbitrator would not take a position adverse to his country, a decision which effectively removed him (p. 754) from the process of forming a majority. In these circumstances, the chairman and the American arbitrator were left as the “majority,” responsible for hammering out the details of an award.

In a number of cases the deliberations between the chairman and American arbitrator appeared, as can be best gleaned from the public record, to break down. The chairman and the American arbitrator still managed to form a majority for an award, although not by the “compromise solution” anticipated by the UNCITRAL drafters. Even in the absence of the Iranian arbitrator, the chairman and the American arbitrator would be unable to agree on a majority decision and, eventually, the American arbitrator yielded, feeling compelled to concur in the award to form the necessary majority, while opining separately on the alleged errors in the award.²⁰ The rationale for this unique practice, as Judge Holtzmann frankly explained, was that “something is better than nothing” in light of “the prospect of indefinite postponement” of the award.²¹ Thus, it seems that in the Tribunal's quasi–permanent setting, where an award could be sidelined in the face of a voluminous docket, the credible threat of delay in some cases leveled the bargaining field and deprived the party–appointed arbitrator of some leverage in the process of forming a majority.

The validity of the practice of concurring in an arbitral award to form the necessary majority has been confirmed by the International Court of Justice. In Case Concerning the Arbitral Award of 31 July 1989, the International Court of Justice ruled:

As the practice of international tribunals shows, it sometimes happens that a member of a tribunal votes in favor of a decision of the tribunal even though he might individually have been inclined to prefer another solution. The validity of his vote remains unaffected by the expression of any such differences in a declaration or separate opinion of the member concerned, which are therefore without consequence for the decision of the Tribunal.²²

As Judge Schwebel, former ICJ President, has pointed out: the “practice of international tribunals” to which the ICJ refers is readily found in the awards (p. 755) of the Iran-US Claims Tribunal made pursuant to Article 31(1) of the Tribunal Rules.²³

(b) The practice of deliberating and drafting awards by the Iran-US Claims Tribunal

After the hearings and the evidentiary record are closed, the Tribunal turns to the task of deliberation. As the UNCITRAL Rules provide no guidance regarding the deliberative process, the practice of the Iran-US Claims Tribunal may provide useful insights. The process officially begins shortly after the final hearing has concluded (usually within a few days) when the presiding arbitrator provides the schedule for the deliberative session. Even before this session takes place, the arbitrators often prepare and circulate memoranda amongst themselves, either sua sponte or at the presiding arbitrator's request, on issues of particular concern that might require more treatment in deliberations. The arbitrators then convene at the deliberative session to air their views on the issues and to formulate the majority position on the terms of the award or decision. The session may last days or weeks depending on the complexity of the issues or the amount of disagreement on how they are to be resolved. As discussed below in Section 3, the deliberations take place in secret. It is the practice of the Tribunal to invite only the Members of the Tribunal (and their legal assistants) and, in some instances, the Secretary–General or other members of the Secretariat to attend deliberations.

Soon after the closure of deliberations, the presiding arbitrator prepares a draft of the award or decision, which, upon completion, is circulated among the arbitrators for review and comment. It is often the practice of the Tribunal for the judges to provide their comments to the presiding arbitrator in two forms: a memorandum detailing issues of particular interest and a line–by–line edit of the award or decision offering both substantive and stylistic comments. On the basis of these comments, the presiding arbitrator will often produce a second draft of the award or decision and present it again to the party–appointed judges for review and comment. The process of drafting and providing commentary repeats as many times as necessary, but typically does not exceed two or three rounds. Additional deliberative sessions may be scheduled if requested and if deemed necessary. Throughout the entire process, up until the filing of the award or decision with the Registry, the judges (p. 756) are continuously communicating their views both orally and in writing to the presiding arbitrator and to one another, making suggestions as to how the award or decision can be improved.²⁴

Although the Tribunal's practice has evolved into an effective method of deliberation, it is not entirely consistent with the rules and guidelines established to regulate the process. Note 2 to Tribunal Rule 31 requires that “[a]ny question which is to be voted upon shall be formulated in precise terms in English and Farsi and the text shall, if a member so requests, be distributed before the vote is taken.” This procedure is rarely followed. Further, while the deliberations normally do commence soon after the hearing, as required by the Tribunal's Internal Guidelines, thereafter the Tribunal rarely meets the suggested 90–day deadline for issuing an award.²⁵ The Tribunal's variation from its own rules and guidelines on the way toward developing an effective deliberation process proves only that strict regulation of this important area may be impossible.²⁶

(2) Decision–making on procedural questions–Article 31(2)

Article 31(2) represents a compromise between those Committee negotiators who favored majority voting that resulted in a “compromise solution” and those who preferred a presiding arbitrator with unilateral powers.²⁷ With respect to questions of procedure only, Article 31(2) invests the presiding arbitrator with authority to end a stalemate among the arbitrators in two instances.²⁸ First, if a majority fails to form regarding a procedural matter, the presiding arbitrator is empowered to resolve the matter on his own. Second, the presiding arbitrator may decide matters of procedure unilaterally where the arbitral tribunal “so authorizes.”²⁹ In both cases, the unilateral powers of the presiding arbitrator are subject to revision by the arbitral tribunal, as (p. 757) discussed below.³⁰ As one UNCITRAL observer noted, Article 31(2) is intended to make the arbitration “quicker and more efficient” by permitting the presiding arbitrator to advance the arbitral proceedings decisively in the face of disagreement.³¹

Article 29 of the Model Law generally tracks the structure of Article 31, but with some notable differences. The Model Law requires majority voting, unless otherwise agreed by the parties, but provides that “questions of procedure may be decided by a presiding arbitrator, if so authorized by the parties or all members of the arbitral tribunal.”³² Thus, in jurisdictions where it is permissible, such as Model Law jurisdictions, the parties may wish to agree to expand the rule on authorization in Article 31(2) to include authorization by the parties or limit its application to cases of unanimous agreement by the arbitrators on authorization.

Procedural questions facing the Iran-US Claims Tribunal typically have been resolved by majority rule, with unilateral decision–making occurring infrequently. Whether acting as Chairman of a Chamber or President of the Tribunal, the presiding arbitrator generally begins deliberations on procedural questions by conferring with his colleagues. These deliberations have ranged from informal meetings in the chairman's office in Chamber cases to formal sittings in Full Tribunal cases that include an official vote of the members conducted and recorded by the President. Both methods permit the presiding arbitrator to solicit the views of the arbitrators and identify the majority position, which is then memorialized in a written action statement–almost always in the form of a draft Tribunal order.³³

To ensure maximum input, a second round of deliberation typically occurs. The presiding arbitrator will circulate the draft order for review by the other arbitrators, with a request that any comments be made promptly, usually within a few days. Comments generated during this second round–often recommending the use of alternative language or the omission of language–guide the presiding arbitrator in making any necessary adjustments to the text of the order. Where the suggested modifications are significant, (p. 758) additional rounds of feedback may be conducted before the order is finalized and issued to the parties. Consistent with the rule that orders (in contrast to awards) need not be signed by all the arbitrators, procedural orders generally are issued only under the name of the Chairman or the President.³⁴

The right of the presiding arbitrator to act alone has rarely been documented in Tribunal caselaw. In American Bell International, an exceptional case, the Full Tribunal considered whether Judge Mångard should continue to serve as Chairman of Chamber Three with respect to the remainder of Case No. 48, following Judge Mångard's resignation and replacement by Judge Virally, pursuant to Article 13(5) of the Tribunal Rules.³⁵ Judge Virally abstained, appropriately in our view, from voting on the question, leaving the remaining eight members to resolve the dispute.³⁶ The vote split four to four. Accordingly, Judge Böckstiegel decided that because “no majority could be found either for or against the applicability of Article 13, paragraph 5, to Mr. Mångard in Case No. 48, it appears to me that Article 13, paragraph 1, should be considered to prevail and that Chamber Three in its present composition with Mr. Virally as Chairman should further deal with this case.”³⁷ Judge Böckstiegel thus directed the composition of Chamber Three with Judge Virally as Chairman.³⁸

Judge Böckstiegel interestingly qualified his order as “without prejudice to the President's power to act pursuant to Article 31, paragraph 2.”³⁹ In a dissenting opinion, Judge Brower criticized the logic of the order.⁴⁰ In light of Chamber Three's practice of adhering to Article 13(5), Judge Brower (p. 759) questioned how “an even division of opinion” in the Full Tribunal could lead to a decision to curtail Judge Mångard's further participation in Chamber Three rather than to confirm it. Accordingly, Judge Brower concluded that “[i]n these circumstances the President perforce dissembles when he attempts to ‘direct that the proceedings in this case shall continue in Chamber Three’ without Judge Mångard and at the same time to imply that such direction does not constitute a positive exercise of his Presidential authority under Article 31(2) of the Tribunal Rules.”⁴¹

In other cases, arbitrators cited Article 31(2) when they believed they or their colleagues had been unduly marginalized from the decision–making process.⁴² A notable example arose in Case No. B1 when the Tribunal issued a procedural order that required the production of documents from both government parties.⁴³ The order was issued under the name of the Tribunal President, Judge Böckstiegel, and appears to have been the work of a drafting committee comprised of Judges Ameli, Aldrich, and Böckstiegel, which the Full Tribunal formed to offer advice on handling Case No. B1. Judge Ameli dissented from the order, claiming that neither the Full Tribunal nor the drafting committed had deliberated on the order, that Judge Böckstiegel had never been authorized to act unilaterally, and that he lacked delegated authority to act on behalf of the Full Tribunal.⁴⁴ In particular, he accused Judge Böckstiegel of deciding questions “unilaterally, without proper deliberations or appropriate authorization from other Tribunal members.”⁴⁵

(a) The meaning of “questions of procedure”

As a presiding arbitrator's power to act alone, either for deadlock–breaking purposes or by authorization, is limited to the realm of procedural matters, perhaps the most important question arising under Article 31(2) is the meaning of the phrase “questions of procedure.”⁴⁶ The Rules make no attempt to (p. 760) define this term or to distinguish between procedural and substantive questions.⁴⁷ This task would appear to fall upon the arbitral tribunal to resolve at its own discretion.⁴⁸ On an abstract level, the answer to the question might seem obvious. Substantive questions should involve matters affecting the creation, definition, and regulation of the rights of the parties to the dispute. Procedural questions, on the other hand, should relate to the technical steps of the arbitral process through which the substantive rights of the parties are ultimately determined. Not surprisingly, this distinction quickly blurs upon real–life application of the Rules.

For example, is the determination of the place of arbitration, in accordance with Article 16 of the Rules, a procedural or substantive question? Professor Sanders believes that this question should not be deemed procedural in nature because the determination of the place of arbitration will necessarily define the applicable law governing the arbitration, or lexi fori, which, in turn, could have significant consequences for the substantive rights of one or both of the parties.⁴⁹ Procedural questions for Professor Sanders, on the other hand, would include more “technical regulations” such as determining the language of the tribunal,⁵⁰ making arrangements for translation or records of a hearing,⁵¹ and resolving a dispute between an expert and a party concerning the relevance of information required by the expert.⁵²

Even the most mundane procedural decisions, however, have the potential to affect the course of the arbitration and ultimately the rights of the parties.⁵³ As a result, the test for defining “questions of procedure” as a practical matter should involve consideration of whether the decision could have a measurable impact on the rights of one or both of the parties, which could (p. 761) result in unfair advantage or prejudice. An identifiable significant impact should give an arbitral tribunal pause to treat a decision as purely procedural.⁵⁴ As a rule, an arbitral tribunal may wish to err on the side of caution when addressing borderline cases and render the decision by majority rule pursuant to Article 31(1).⁵⁵ Of course, if the tribunal has any intention that its decision have legal effect, for example under the New York Convention, then the decision should take the form of an award.⁵⁶

(b) Revision

Any decision made unilaterally by a presiding arbitrator, pursuant to his deadlock–breaking or authorized powers under Article 31(2), is subject to revision by the arbitral tribunal.⁵⁷ A reasonable interpretation of the revision power is that it serves to check the presiding arbitrator's unilateral authority in the area of procedure.⁵⁸ If the presiding arbitrator's unilateral decision on procedure is sufficiently offensive to the other members of the tribunal, they may collectively overrule it. The usefulness of revision in practice is questionable, however. As Professor Sanders explained, it is difficult to imagine “that procedural decisions which would have already taken effect should be (p. 762) reversed by the tribunal.”⁵⁹ Nonetheless, the fact that the presiding arbitrator's unilateral decisions on procedure are subject to challenge cannot be entirely minimized, especially in cases where the decision in question affects the outcome of the arbitration.⁶⁰

On occasion, requests for revision of a procedural order have been filed with the Iran-US Claims Tribunal by the party governments, but none have succeeded.⁶¹

(3) Confidentiality of deliberations–Article 31, Note 2 of the Tribunal Rules

It is a well–established principle of international adjudication that the “deliberations” of an arbitral tribunal must “remain confidential in perpetuity unless the parties release the arbitrators from this obligation.”⁶² Article 31, Note 2 of the Rules of Procedure of the Iran-US Claims Tribunal enshrines this principle by providing that the “deliberations” of the Tribunal “shall be secret and remain secret.”⁶³ As stated by Sir Robert Jennings in his capacity as Appointing Authority for the Tribunal, the raison d'être of a rule of confidentiality

is the practical consideration that secrecy of deliberations is essential if the deliberation is to produce a true discussion and argument and not become a mere exchange of cautiously expressed and selected views.⁶⁴

(p. 763) Absent such a rule, a party arbitrator would run the risk of being called upon by his respective party to justify positions taken and concessions made during deliberations that are adverse to that party's interests.⁶⁵ This danger is particularly relevant to deliberations under the UNCITRAL Rules where it is possible that deliberations will yield a compromise solution.⁶⁶ Of equal, if not greater, concern are breaches of the rule of confidentiality which cause information about the status of negotiations in a deliberation to be leaked from an arbitrator to his respective party, thus giving that party an unfair advantage in any outside settlement talks with his opponent.⁶⁷

(a) The scope of the rule of confidentiality

Because Article 31, Note 2 of the Tribunal Rules applies only to the arbitral tribunal's “deliberations,” the meaning of that term has been the subject of considerable debate before the Iran-US Claims Tribunal. On two occasions, in the context of challenge proceedings, Iran has taken the position that only the formally scheduled deliberative meetings of the Tribunal are “deliberations”. The first instance involved Judge Briner's challenge by Iran, based on allegedly inappropriate informal discussions between Judge Khalilian and Judge Briner. Iran argued that these discussions regarding the method of calculating the amount of the award and a memorandum from Judge Aldrich to Judge Briner allegedly containing evidence of such calculations were not part of the “deliberations” of the Tribunal.⁶⁸ Thus, Iran maintained, the rule of confidentiality did not bar the Appointing Authority (p. 764) from considering this information, as the United States claimed.⁶⁹ The second instance involved the US challenge of Judge Broms. Similarly, Iran argued that Judge Broms' statements in his separate opinion in Case No. A/28 regarding the alleged absence of formal deliberations on the operative terms of the award was not a breach of secrecy, as the United States asserted, since such comments merely stated the absence, not the contents, of Tribunal deliberations.⁷⁰

On each occasion, Iran's restrictive interpretation of the term “deliberations” failed to persuade. As to Briner's challenge, Appointing Authority Judge Moon decided “[i]n the interest of a proper functioning of the Tribunal” not to consider any information revealed in violation of the rule of confidentiality, including discussions among arbitrators taking place outside of formal Chamber meetings.⁷¹ In Judge Broms' challenge, the Appointing Authority, Sir Robert Jennings, reached a similar conclusion:

A rule of confidentiality of the deliberations must, if it is to be effective, apply generally to the deliberation stage of tribunal's proceedings and cannot realistically be confined to what is said in a formal meeting of all the members in the deliberation room. The form or forms the deliberation takes varies greatly from one tribunal to another. Anybody who has had experience of courts and tribunals knows perfectly well that much of the deliberation work, even in courts like the ICJ which have formal rules governing the deliberation, is done less formally. In particular the task of drafting is better done in small groups rather than by the whole court attempting to draft round the table. Revelations of such informal discussion and of suggestions made (p. 765) could be very damaging and seriously threaten the whole deliberation process.⁷²

These decisions indicate that the deliberations of a tribunal extend well beyond the formal meetings of the tribunal as a whole to the informal communications undertaken (either orally or in writing) by arbitrators, which may occur anytime up until the moment the award is rendered.⁷³

Is the rule of confidentiality absolute and, if not, under what circumstances can it be abrogated? This issue has arisen at the Tribunal on two occasions. On the first occasion, the Raygo Wagner Equipment case, Judge Sani provided a statement of his reasons for failing to sign the award in which he charged that crucial deliberations had taken place in his absence.⁷⁴ When accused by Judge Mosk of breaching the confidentiality of deliberations, Judge Sani defended his statement on the theory that Article 32(4) of the Tribunal Rules, requiring disclosure of his reasons, took precedence over the rule of confidentiality.⁷⁵

In terms of the Rules, Judge Sani's argument presents a false conflict. As described below, under Article 32(4), it is the signing arbitrators, not the abstaining arbitrator, who are responsible for providing the statement of reasons for an arbitrator's failure to sign the award.⁷⁶ Thus, there was in fact not conflict between the UNCITRAL Rules and the rule of confidentiality of (p. 766) deliberations. Judge Sani's argument, even if wrong as a technical matter, raises the interesting question of whether, in the event of a true conflict of norms, the rule of confidentiality of deliberations would prevail. The UNCITRAL Rules do not present such a conflict in their unmodified form. The parties are, however, at liberty to modify the Rules pursuant to Article 1(1), and may wish to formally limit the rule of confidentiality. In such a situation, the specific will of the parties offsets the general presumption of confidentiality of deliberations. When carving out exceptions to the rule of confidentiality of deliberations, the parties, wary of potentially competing norms, should endeavor to draft as precisely as possible to minimize subsequent disputes over the scope of the exception.

On a second occasion, the Tribunal debated whether the rule of confidentiality may be abrogated to vindicate higher interests of justice. In the Unidyne Corporation case, Judge Aghahosseini disclosed in his dissenting opinion certain procedural aspects of the Tribunal's deliberations in an attempt to demonstrate that the claimant was wrongly awarded compensation for a claim that was never formally raised.⁷⁷ When criticized by his colleagues for these revelations,⁷⁸ Judge Aghahosseini argued that “not everything can be done under the protective shield of the sanctity of deliberations.” He further stated: “[w]here a correct reflection of facts demands, all other considerations must give way: Necessitas vincet legem; legum vincula irridet.”⁷⁹ While the need to disclose in the Unidyne Corporation case, in particular, is arguable, the principle of disclosure where justice requires is sound. Just what conditions would compel disclosure is an area for future cases to develop. One former Tribunal arbitrator has proposed the general rule that “if there are allegations that the deliberation process wrongfully excluded an arbitrator or that another arbitrator otherwise acted in an improper manner, then such allegations can be disclosed.”⁸⁰

(b) Enforcing the rule of confidentiality

Enforcing the rule of confidentiality poses a significant challenge to the arbitrators. Unlike the ICC Arbitration Rules, which require that all awards (p. 767) be submitted to the ICA for review before being signed by the arbitrator, the UNCITRAL Rules offer no institutional control over the content of a tribunal's written work product.⁸¹ Thus, if an arbitrator includes secret information about tribunal deliberations in his separate opinion, even if unwittingly, such information generally will be passed unfiltered onto the parties and possibly to the general public, if the award is published. As discussed below, the Iran-US Claims Tribunal has attempted to enforce the rule of confidentiality in a variety of ways, but with only limited success.

Censure of written statements.The issue of censure arose early in the Tribunal's life after Judge Sani filed several statements explaining his refusals to sign a number of awards.⁸² Believing that Judge Sani's submissions divulged chamber secrets and thus contravened Article 31, Note 2 of the Tribunal Rules, Judge Mosk expressed regret that they were not withheld from the parties.⁸³ Notably, for a brief period at the start of the Tribunal's work, the Tribunal's Registry refused to accept and transmit certain types of documents. However, such a policing role for the Registry did not have the political support of a majority of the Full Tribunal. Thus, despite Judge Mosk's concerns, the Tribunal was unable to censure any of the arbitrators' statements. Rather, the Tribunal has continued to release to the parties dissenting opinions believed by some arbitrators to contain confidential information regarding Tribunal deliberations.⁸⁴ One may attribute the Tribunal's unfortunate inability to police the rule of secrecy to its politically charged working environment in which review, let alone the redaction, of a party–appointed arbitrator's opinions could not gain the support of a majority of the Full Tribunal⁸⁵

Statements of disapproval by fellow arbitrators.On two occasions, the (p. 768) Tribunal has issued statements disapproving of a colleague's disclosure of allegedly confidential information. Following the filing of Judge Broms' separate opinion in Case No. A/28, which revealed the substance of confidential deliberations of the Tribunal, the President issued a stern statement of criticism on behalf of the Full Tribunal and noted with regret that Judge Broms had violated Article 31, Note 2 of the Tribunal Rules.⁸⁶ In Chamber Three, Judges Arangio–Ruiz and Allison reprimanded Judge Aghahoseini for divulging in his dissenting opinion the particulars of the majority's award–drafting procedures.⁸⁷ While such statements of disapproval are unquestionably appropriate, their punitive effect is dubious, especially since the targeted arbitrator will likely deny that a breach of confidentiality has occurred.⁸⁸

Challenge proceedings.In extreme cases, a breach of confidentiality may provoke a challenge of the alleged offending arbitrator.⁸⁹ Judge Broms' revelations of deliberations in his separate opinion in Case No. A/28 prompted the US Government to initiate a multifaceted challenge to the Finnish arbitrator. In challenging Judge Broms' partiality and independence, the US raised several arguments with respect to his disclosure of deliberation comments, including: that Judge Broms' allegation that the Tribunal did not formally deliberate upon portions of the dispositif was meant to “undermine the remedy afforded the United States”⁹⁰; that his revelation that he favored a position favorable to Iran was an “attempt to demonstrate publicly his efforts on behalf” of Iran;⁹¹ and that his disclosure raised doubts as to impartiality in future matters before the Tribunal.⁹² While cautioning that it was not for him as Appointing Authority to monitor and discipline alleged breaches of confidentiality, Sir Robert Jennings found that the Appointing Authority may examine such breaches “as a factor in a decision on the ‘justifiable doubt’ question.”⁹³ After reviewing the US Government's claims against the (p. 769) backdrop of the objectionable disclosures, Sir Robert concluded that no grounds existed for the removal of Judge Broms from his position. He did note, however, that further breaches might “change the balance of a decision in respect of any further challenge.”⁹⁴

C Extracts from the Practice of the Iran-US Claims Tribunal

(1) Tribunal Rules, Article 31(1)

We concur in the majority decision of the Tribunal on the disposition of interest accruing on the Security Account because it is a fair, if conservative, interpretation of the text of paragraph 7 of the Declaration. While we consider that crediting the interest directly to the Security Account rather than placing it in a separate account would have been more consistent with the language, object and purpose of the Algiers Declarations and more in keeping with banking practice, we nevertheless join the majority in order to enable this question to be resolved in an acceptable manner.²

Iran and United States, Case A/1 (Issues I, III and IV), Decision No. DEC 12–A1–FT (3 Aug 1982), Separate Opinion of Members Aldrich, Holtzmann and Mosk (3 Aug 1982), reprinted in 1 Iran-US CTR 200, 200 (1981–82).

I concur in the Tribunal's Partial Award. I do so in order to form a majority so that an award can be rendered.¹ Although, as I discuss below, my analysis varies from that set forth in the Reasons for Award, I recognize that in view of the circumstances of this case, other points of view on the merits are not unreasonable. As I explain below, however, I believe that the decision to leave some issues presently unresolved was inappropriate.
As I noted at the outset, despite my view that I would have preferred different reasoning on the merits and despite my dismay over certain procedures and events associated with this case, I do join in the result of the Partial Award, which I deem tenable, in order to form a majority for it.

(p. 770) Ultrasystems Incorporated and The Islamic Republic of Iran, Partial Award No. 27–84–3 (4 Mar 1983), Concurring Opinion of Richard M Mosk (4 Mar 1983), reprinted in 2 Iran-US CTR 114, 114–15, 123 (1983–I).

I concur in the Award in this Case. The Award correctly holds that contracts of sale were formed, that the Respondents breached those contracts and that they are liable to pay damages. Unfortunately, however, the damages awarded are only about half of what the governing law requires.
Why then do I concur in this inadequate Award, rather than dissenting from it? The answer is based on the realistic old saying that there are circumstances in which “something is better than nothing.” The operative circumstances here are that under Article 31, paragraph 1 of the Tribunal Rules (as well as under the UNCITRAL Arbitration Rules), “when there are three arbitrators, any award or other decision of the arbitral tribunal shall be made by a majority of the arbitrators.” Thus, in a three–member Chamber a majority of two members must join, or there can be no Award. My colleague Dr. Kashani having dissented, I am faced with the choice of either joining in the present Award or accepting the prospect of an indefinite postponement of any Award in this Case. For, as Professor Sanders has explained in his Commentary on UNCITRAL Arbitration Rules, arbitrators must continue their deliberations until a majority has been reached. II Yearbook Commercial Arbitration [1977] 208. The deliberations in this Case have continued long enough; the hearing was closed on February 15, 1983, four months ago. Neither the parties nor the Tribunal will, in my view, benefit from further delay.

Economy Forms Corporation and The Government of the Islamic Republic of Iran, Award No. 55–165–1 (20 Jun 1983), Concurring Opinion of Howard M Holtzmann (20 Jun 1983), reprinted in 3 Iran-US CTR 55, 55 (1983–II) (footnote omitted).

I concur in the Award in order to form a majority for it.

(p. 771) Alan Craig and Ministry of Energy of Iran, Award No. 71–346–3 (2 Sep 1983), Concurring Opinion of Richard M Mosk (2 Sep 1983), reprinted in 3 Iran-US CTR 293, 293 (1983–II).

I am also disturbed by the potential consequences of unnecessarily separating a case into segments and then deciding it piecemeal at different times and with different majorities. The procedure gives the Chairman the ability to divide a case into a number of issues and thereby to dictate the final result without there being any majority for the award. Such a practice, especially if misused, conflicts with the spirit, if not the letter, of the rule requiring an award to be made by a majority of the arbitrators. Tribunal Rule 31, paragraph 1. In the instant case, the Chairman, having obtained my reluctant compromise vote in order to form a majority for the Partial Award (see my Concurring Opinion to Partial Award No. 27–84–3), has now taken a portion of that award away with a different majority. Such actions are not conducive to the formation of majorities.

Ultrasystems Incorporated and The Islamic Republic of Iran, Award No. 89–84–3 (7 Dec 1983), Dissenting Opinion of Richard M Mosk to Final Award (7 Dec 1983), reprinted in 4 Iran-US CTR 80, 80 (1983–III).

I concur with reluctance in the Interlocutory Award in this case. I do so in order to form a majority for the key finding that the Government of the Islamic Republic of Iran has expropriated property of the Claimants in Iran. My concurrence is reluctant because the Interlocutory Award sets the date of the taking far later than when it actually occurred. The Interlocutory Award also includes a number of errors, and contains needlessly muddled terms of reference for the accounting expert who is appointed to give an opinion concerning the value of the expropriated property.
In view of the many errors in the Interlocutory Award, it would be easier to dissent from it than to concur in it. The Tribunal Rules provide, however, that awards can only be made by a majority vote. Thus, in a three–member Chamber, at least two members must join or there can be no decision. My colleague, Judge Kashani, having dissented, I am faced with the choice of joining the President in the present Interlocutory Award despite its faults, or accepting the prospect of an indefinite delay in progress toward final decision of this case. See, Tribunal Rules, Article 31, paragraph 1. See also Sanders, Commentary on UNCITRAL Arbitration Rules, II Yearbook of Commercial Arbitration 172, 208 (1977). The Hearing in this case closed more than ten months ago; now that an (p. 772) Award has at last been prepared, no one would benefit from further delay.

Starrett Housing Corporation and The Government of the Islamic Republic of Iran, Interlocutory Award No. ITL 32–24–1 (20 Dec 1983), Concurring Opinion of Howard M Holtzmann (20 Dec 1983), reprinted in 4 Iran-US CTR 159, 159 (1983–III).

I concur in the Tribunal's Award in order that a majority can be formed. As one authority has written, if there is no majority, the “arbitrators are therefore forced to continue their deliberations until a majority, and probably a compromise solution, has been reached.” Sanders, Commentary on UNCITRAL Arbitration Rules, II Yearbook of Commercial Arbitration 172, 208 (1977). This Award represents a “compromise solution” in which I have joined so that some award could be issued. Otherwise, this case heard almost a year ago, would remain undecided.
I recognize that the value of Claimant's nationalized interest in Iran America cannot be established with precision. I believe, however, that there are justifications for an award of damages higher than that provided by the Tribunal in this case.

American International Group Inc. and Islamic Republic of Iran, Award No. 93–2–3 (30 Dec 1983), Concurring Opinion of Richard M Mosk (30 Dec 1983), reprinted in 4 Iran-US CTR 111, 111–12 (1983–III).

I agree with the amount of damages awarded in this case, but I disagree quite sharply with a key element of the reasoning by which the Award reaches that result.
I join fully in all other aspects of the Award, except that I vote for the unrealistically low amount of costs awarded only because that is necessary in order to form a majority on this question.

Questech, Inc. and The Ministry of National Defence of the Islamic Republic of Iran, Award No. 191–59–1 (25 Sep 1985), Separate Opinion of Howard M Holtzmann (25 Sep 1985), reprinted in 9 Iran-US CTR 138, 138 (1985–II).

I have serious questions, however, concerning the correctness of several findings in the Final Award that lower the valuation below the amount that was carefully and cogently determined by the Tribunal's expert. I also question the award of interest at the rate of only 8.5 percent.…
I also write to discuss the points in the Final Award that I would prefer (p. 773) to be decided differently, and to comment on the failure to award Starrett any of its costs of arbitration. Notwithstanding these misgivings, I join in the Final Award in order to form a majority, for otherwise no award can be issued.

Starrett Housing Corporation and The Government of the Islamic Republic of Iran, Award No. 314–24–1 (14 Aug 1987), Concurring Opinion of Judge Holtzmann (14 Aug 1987), reprinted in 16 Iran-US CTR 237, 238 (footnote omitted).

1. I concur in the result reached in the Award in these Cases in order to form the requisite majority. As set forth herein, however, there are elements of the Award's reasoning with which I cannot agree.
3. I must respectfully, but profoundly, disagree with this interpretation of the law.…

Shahin Shaine Ebrahimi and The Government of the Islamic Republic of Iran, Award No. 560–44/46/47–3 (12 Oct 1994), Separate Opinion of Richard C Allison (12 Oct 1994), reprinted in 30 Iran-US CTR 236, 236 (1994).

I concur in the Tribunal's Partial Award in order to form a majority so that an Award can be rendered. Consistent with Tribunal practice, I discuss below my analysis of certain issues that differs from the reasoning expressed in the Partial Award. My points have been raised by at least one of the parties, but inexplicably, receive little, if any, discussion by the Tribunal in its lengthy opinion. Although I have a different point of view on certain issues, do not join in some of the reasoning, and regret the form of the award, under the circumstances, I join in the Partial Award as set forth in the dispositif in order to form a majority. There is one Partial Award that requires a majority of the members of the Tribunal.… Four Members purport to dissent from, and concur with, the Partial Award. I do not believe that there can be different majorities for the different issues that comprise this Partial Award, especially when there was no actual division of the issues into segments. I have noted at one time that I was disturbed “by the potential consequences of unnecessarily separating a case into segments and then deciding it piecemeal at different times and with different majorities.” … Here the issues were not even separated into segments. To have separate majorities for various issues in a case “conflicts with the spirit, if not the letter, of the rule requiring an award to be made by a majority of the arbitrators.” (p. 774) … Such a practice is inconsistent with the development of a consensus in decision–making. The majority requirement in the UNCITRAL Tribunal Rules has a long history in intergovernmental dispute resolution and has received widespread support. Accordingly, notwithstanding any Tribunal practice to the contrary, I believe that my concurrence is necessary for a true majority for this Partial Award.

Islamic Republic of Iran and United States of America, Case No. A/11, Award No. 597–A11–FT (7 Apr 2000), Separate Opinion of Richard M Mosk (7 Apr 2000), at 1–2.

(2) Tribunal Rules, Article 31(2)

In these circumstances the President perforce dissembles when he attempts to “direct that the proceedings in this case shall continue in Chamber Three” without Judge Mangård and at the same time to imply that such direction does not constitute a positive exercise of his Presidential authority under Article 31(2) of the Tribunal Rules. (Emphasis added.) Merely denying that he has acted under Article 31(2) does not make it so. The President has performed a dispositive act for which he cannot credibly disclaim responsibility.
It is regrettable that this exercise of authority inevitably comprises in some measure the integrity of the Tribunal's processes. The exclusion of Judge Mangård from completing this Case can mean only one of two things: either it constitutes an interpretation of Article 15(5) at variance with that previously made by Chamber Three, in which case the previous Award would be called into question; or it means that Article 13(5) thereby is changed, presumably to make its application discretionary (which was not the Tribunal's intention in adopting it). The latter possibility would have the additional problem that a change of Article 13(5) was never discussed in the Full Tribunal, a fact which in turn would cast doubt on the character of the Tribunal deliberations if not on the validity of the amendment itself. Either result would leave the Tribunal undeservedly blemished.
The only course open to the President that would not have impaired our institutional integrity would have been (1) either to note officially that the Tribunal had failed to disaffirm the application of Article 14(5) to Case No. 48 by Chamber Three or (2) in the exercise of his powers under Article 31(2) to confirm such application.

American Bell International, Inc. and The Government of the Islamic Republic of Iran et al., Memorandum from the President regarding the Question of (p. 775) whether Article 13, paragraph 5, of the Tribunal Rules applies to Mr. Mangård (12 Sep 1985), Dissent by Charles N Brower (20 Sep 1985), reprinted in 9 Iran-US CTR 410, 412–413 (1985–II) (citations omitted).

As I did not concur in this Order or in authorizing the Chairman of Chamber Two to “decide on his own” the Chairman necessarily signed this Order either with the concurrence of Judge Bahrami or after determining that “no majority” existed either supporting or opposing it.

International Systems & Controls Corporation and Industrial Development and Renovation Organization et al., Award No. 256–439–2 (26 Sep 1986), Dissenting Opinion of Judge Brower (26 Sep 1986), reprinted in 12 Iran-US CTR 265, 268 note 9 (1986–III).

1. It is highly regrettable that the present President of the Tribunal has made a habit of disregarding the Tribunal Rules by deciding matters, whether procedural or substantive, unilaterally, without proper deliberations or appropriate authorization from other Tribunal members.
2. Article 31 of the Tribunal Rules on Decisions provides:
1. 1. When there are three arbitrators, any award or other decision of the arbitral tribunal shall be made by a majority of the arbitrators.
2. 2. In the case of questions of procedure, when there is no majority or when the arbitral tribunal so authorizes, the presiding arbitrator may decide on his own, subject to revision, if any, by the arbitral tribunal.
3. The present Case is before the Full Tribunal of nine members, requiring decision by all of them on the questions at hand. Although the questions involved in this Order are procedural, they are nevertheless highly significant and any attempt to change the course of the proceedings may eventually change the fate of this multibillion dollar Claim.

The Ministry of Defence of the Islamic Republic of Iran and The Department of Defence of the United States of America, Case No. B1, Order of 2 Jul 1987, Dissenting Opinion of Mr. Ameli (2 Jul 1987), reprinted in 18 Iran-US CTR 47, 47–48 (1988–I).

(3) Tribunal Rules, Article 31, Note 2–Confidentiality of deliberations

I am restrained by Tribunal Rules and other considerations² from (p. 776) commenting fully on the accuracy of the description of the deliberations in this case in the “opinion” of Judge Jahangir Sani, who did not sign the award. If I were free at this time to discuss these deliberations, I would be able to set forth a true, accurate and complete statement of events.
It should be noted that confidentiality of deliberations is widely recognized as desirable and was supported by both the Government of the Islamic Republic of Iran and the United States of America. Such confidentiality is particularly essential in arbitration proceedings such as these in which arbitrators may, as Professor Sanders wrote, be “forced to continue their deliberation until a majority, and probably a compromise solution, has been reached.”…
In the event that the Tribunal remains unwilling or unable to enforce its own rules and other generally recognized rules of conduct, such rules may no longer be of any effect.

Granite State Machine Co. Inc. and The Islamic Republic of Iran, Award No. 18–30–3 (15 Dec 1982), Concurring Opinion of Richard M Mosk (25 Jan 1983), reprinted in 1 Iran-US CTR 449, 449 (1981–82) (footnotes omitted).

The document entitled “Mr. Jahangir Sani's Reasons for Not Signing the Decision Made by Mr. Mangard and Mr. Mosk In Case No. 17” (“document”) is both inappropriate and inaccurate. See Concurring Opinion of Richard M Mosk in Case No. 30.
First, it is a violation of Tribunal Rules and generally accepted ethical standards to attempt to divulge the deliberations of an arbitral tribunal. Article 31, Note 2, provisionally Adopted Tribunal Rules. As one authority has written,
Art. 54(3) of the ICJ Statute, which provides that “the deliberations of the Court shall take place in private and secret”, represents a practice of such widespread application as to be arguably a general principle of law. 1 Encyc. of Pub. Int. Law 185 (1981).
Such confidentiality is particularly essential in arbitration proceedings such as these in which arbitrators may, as the eminent Dutch arbitration (p. 777) expert, Professor Sanders has written, be “forced to continue their deliberations until a majority, and probably a compromise solution, has been reached.” (citation omitted).
I do not feel it necessary at this time to give a point by point rebuttal to every assertion of Judge Sani. But other facts and representations by him are incorrect. The fact that this dialogue is taking place demonstrates the wisdom of rules of confidentiality of proceedings and the custom that legal opinion should be restricted to legal and factual issues on the merits of the case. Moreover, everything that Judge Sani says is irrelevant to his conclusion as to the validity of the award. The fact is that all applicable procedural rules were complied with. There was a majority in favor of the award and it was properly prepared and filed. Judge Sani is unable to point to any rule or law which would affect the validity of the award or suggest any impropriety. What is important is that all members of the Tribunal be immune, and appear to be immune, from unfounded accusations and that they decide cases impartially, on the merits, in accordance with the evidence before them and on the basis of respect for law as required by the Claims Settlement Declaration.

Raygo Wagner Equipment Company and Star Line Iran Company, Award No. 20–17–3 (15 December 1982), Comments of Richard M Mosk with Respect to “Mr. Jahangir Sani's Reasons For Not Signing The Decision Made by Mr. Mangard and Mr. Mosk in Case No. 17” (3 Mar 1983), reprinted in 1 Iran-US CTR 424, 424–27 (1981–82).

My colleague, Judge Jahangir Sani, has filed a document entitled “Mr. Jahangir Sani's reply to Mr. Mosk's ‘Comments’ of 3 March 1983 Concerning Case No. 17.” Such a document contains unfair complaints about the Chairman's internal administration of the Chamber and reflects bickering among members of the Tribunal which does little more than detract from the decorum of the Tribunal. As I have noted before, … it is unfortunate that [in allowing the release of such comments] the Tribunal has not enforced its own rules and traditional standards of propriety. The failure to do so can be particularly serious in government established international tribunals which, throughout history, have been particularly fragile.
I again must state that I hope that the members of the Tribunal will not be affected by unfounded accusations and will decide cases impartially (p. 778) and on the basis of respect for law as required by the Claims Settlement Declaration.

Raygo Wagner Equipment Company and Star Line Iran Company, Award No. 20–17–3 (15 Dec 1982), Further Comments of Richard M Mosk (13 Apr 1983), reprinted in 1 Iran-US CTR 441, 441 (1981–82) (footnote omitted).

Once again Judge Sani inaccurately describes procedures adopted and implemented by the experienced Chairman of this Chamber who was selected by mutual agreement of the members appointed by Iran and the United States.
Judge Sani's complaint seems to be that after the draft opinion was prepared,³ he wanted more deliberations, despite the fact that he would not attend them and would not sign any award in any event.
Regrettably, the Tribunal has permitted the release of Judge Sani's statements, which include material in violation of the Tribunal rule providing for confidentiality of deliberations (Article 31, Note 2 of the Provisionally Adopted Tribunal Rules). Although other members of the Tribunal undoubtedly disapprove of such violations of the rules, it is unfortunate that the Tribunal has been unwilling to take appropriate steps to enforce its rules. Moreover, the dialogue itself constitutes an unnecessary diversion from the task of the Tribunal.

Rexnord, Inc. and The Islamic Republic of Iran, Award No. 21–132–3 (10 Jan 1983), Concurring Opinion of Richard M Mosk (13 Apr 1983), reprinted in 2 Iran-US CTR 27, 27–29 and n 3 (1983–I).

[O]n 24 November 1987 the Agent of the Islamic Republic of Iran filed a letter concerning the present state of proceedings in this Case. In response to that letter, the Tribunal makes the following observations:

3. The Agent's request for information also relates to matters presently under deliberation in this Case. Note 2 to Article 31 of the Tribunal Rules requires that deliberations be kept secret and, accordingly, it is (p. 779) the Tribunal's practice not to divulge any information concerning them.

Uiterwyk Corporation and The Government of the Islamic Republic of Iran, Order of 4 Dec 1987, Chamber One, at 1.

Your note of 28 June 1989 regarding the Draft Award in Case No. 39 … as well as certain remarks you made on 29 June 1989 indicate that you are labouring under a misconceived idea regarding the deliberation process, as you state that “memoranda exchanged between the Members are also regarded as part of the deliberation process and should be fully communicated to all the Members concerned.”
I should first of all like to point out that it has always been the practice of Chamber Two, once a draft had been issued, to discuss and exchange views on the legal and factual issues involved. Such discussions have frequently taken place between myself as Chairman and you or Mr. Aldrich alone. I also understand that at certain occasions discussions have taken place between you and Mr. Aldrich without my being present. When written comments are made with regard to a draft deliberated by me, it is up to the author of such comments to decide to whom to address them. In this context I only take note of the long–standing practice, also in the Full Tribunal and of Chambers One and Three, to address comments on the Presiding Arbitrator's draft directly to the Presiding Arbitrator without communicating them to the respective other Members of Members. It is then up to the Presiding Arbitrator to take into account or not such comments when issuing the subsequent draft.
I should therefore make it very clear that there exists no obligation whatsoever on a Presiding Arbitrator to always make the other Member(s) aware of such communications addressed to him. On the other hand, it is equally clear that a draft of an award prepared by the Presiding Arbitrator has to be submitted to all other Members for comments before signature.

Text of Memorandum from Mr. Briner to Mr. Khalilian dated 14 Jul 1989 attached to the Letter from Mr. Briner to the Appointing Authority dated 10 Aug 1989, reprinted in 21 Iran-US CTR 354, 354 (1989–I).

1. I write this statement with regret, for I believe that the Award in this Case and my Concurring Opinion adequately express my views, and I find post–award exchanges among the Members of the Tribunal unseemly, particularly when they violate, as do Judge (p. 780) Khalilian's comments, Article 31, Note 2 of the Tribunal Rules which requires all Tribunal Members and Staff to maintain the privacy of deliberations. Nevertheless, in light of Judge Khalilian's comments and in view of the importance of this Case, I feel compelled to set the record straight on several of his assertions.
5. Judge Khalilian asserts that the calculations were attached to a memorandum that I communicated to the President, which he says he obtained “from a source which [he] do[es] not feel obliged to disclose.” Judge Khalilian is misinformed. There never was a memorandum from me to the President on this subject; there were merely my legal assistant's hand–written calculations made in the circumstances described and a one–sentence transmittal memo from him to the President. I might add that even if I had written that memorandum to the President–which I did not–it would not have been improper. Thus it is not uncommon, or incorrect, for a judge, or a member of his staff, to communicate comments and information, orally or in writing, to the President or one or more other judges, without making a general distribution to all judges. I understand that such practices have been followed within the Tribunal, including by Judge Khalilian, as they have been among the judges of the International Court of Justice.

Phillips Petroleum Company Iran and The Islamic Republic of Iran, Award No. 425–39–2 (29 Jun 1989), Supplemental Statement of George H Aldrich (30 Aug 1989), reprinted in 21 Iran-US CTR 256, 256, 258–59 (1989–I).

Article 31 of the Tribunal Rules–as it is to be understood and applied according to Note 2 of this article–prescribes that deliberations in camera are confidential and must remain so. In the interest of proper functioning of the Tribunal this rule should be strictly observed, so that every Arbitrator may put forward his opinions and arguments in camera in full freedom, without fear of being called upon by the parties to account for them.
To my mind it would not be consonant with this interest if an appointing authority, as provided for by the Tribunal Rules, were to consider, in deciding a challenge, also information which should have remained confidential pursuant to the said Article 31.

Decision of Justice Ch MJA Moons, Appointing Authority for the Iran- (p. 781) US Claims Tribunal, (Challenge of Judge Briner) (19 Sep 1989), reprinted in 21 Iran-US CTR 384, 387 (1989–I).

This was immediately followed by the Chamber's oral deliberations. Still no suggestion, from any corner, that any such claim was before the Tribunal for decision.⁶…
The deliberations on the Case were followed, on 27 December 1991, by a Draft Award prepared by a Member on facts and contentions. No reference was there made to the existence of a claim on the Shipyard work before the Chamber. A second suggested Draft, this time on the merits of the Parties' contentions, was distributed on 27 March 1992. Still, no allusion to such a claim. Finally, the Chamber's First Draft Award was prepared and submitted to the Members on 19 May 1993. Once again, no trace of such a claim being before the Chamber for determination. By then, of course, some three years had passed since the Hearing.…
Such was the case before the Chamber, and these were the reasons why the Chamber in its oral deliberations, which immediately followed the Hearing, and in its preparation of the earlier Draft Awards, which lasted for over three years, did not as much as refer to a possible claim on the work performed at the Shipyard.

Unidyne Corp. and The Islamic Republic of Iran, Case No. 368, Award No. 551–368–3 (10 Nov 1993), Dissenting Opinion of Mohsen Aghahosseini (12 Nov 1993), reprinted in 29 Iran-US CTR 349, 355–56 (1993).

1. The Members of the Tribunal rarely respond to Dissenting Opinions, and, accordingly, we do not comment on Judge Aghahosseini's Dissenting Opinion in Case No. 368 insofar as it relates to the Tribunal's procedure in arriving at the Award in this Case. However, in his Dissenting Opinion Judge Aghahosseini has chosen to enter into a discussion of the substance of the Chamber's deliberations in this Case as he claims to perceive them.¹
2. In entering into the said discussion the Judge violates the Rules of this Tribunal as well as the generally observed principle of the confidentiality of arbitral deliberations.… It is not sufficient that his breach of confidence is, in his opinion, “absolutely necessary for the (p. 782) present purposes” (whatever those may be). The salutory effect of a rule so widely accepted in international dispute settlement cannot be well served if it is to be subject to the opinion, however strongly held, of individual arbitrators. We deeply regret the course taken by Judge Aghahosseini.

Unidyne Corp. and The Islamic Republic of Iran, Award No. 551–368–3 (10 Nov 1993), Supplemental Opinion of Judge Arangio–Ruiz and Judge Allison (17 Nov 1993), reprinted in 29 Iran-US CTR 364, 364–65 (1993).

2. …They are wrong factually, because the Dissent simply does not disclose the substance of any deliberation. All that it does say in this respect–and this is in order to demonstrate that the assumed claim had never been before the Chamber–is that neither in the oral deliberations nor in the three Draft Awards which were subsequently prepared, had there been any trace of such a claim. A reference to what had not been before the Chamber–and hence had not formed part of the deliberations–cannot, by any stretch of imagination, be taken as constituting a disclosure of the substance of what was deliberated.
They are wrong legally, because not everything can be done under the protective shield of the sanctity of deliberations. This procedural rule, like any other rule of law, is to protect what is just and nothing else: Lex est sanctio sancta, jubens honesta, et prohibens contraria. One cannot simply fashion a claim, of which there has been no trace either in the pleadings or in three years of oral and written exchanges after the Hearing, and then seek to bury this irregularity under the rubble of the “salutory effect” of the rule of confidentiality. Where a correct reflection of facts demands, all other consideration must give away: Necessitas vincet legem; legum vincula irridet.
3. A glance at the Dissenting Opinion will readily show that what has troubled the Majority in there is not a general reference to what has not been deliberated upon, “…” but a reasoned demonstration of how an assumed claim, of which there has been no trace in the pleadings, has been fully granted. That is a fact which no arbitrator, faithful to his mandate can possibly fail to mention in his version of (p. 783) the events; and that is a fact in respect of which the majority, continuing their intimate joint efforts, have failed to challenge.

Unidyne Corp. and The Islamic Republic of Iran, Award No. 551–368–3 (10 Nov 1993), A Statement in Case No. 368 by Mohsen Aghahosseini (19 Nov 1993), reprinted in 29 Iran-US CTR 365, 365–66 (1993).

1. Although it is not customary for a Member of the Tribunal to comment on another Member's individual opinion filed in a case, the nature of some of the statements made by Mr. Broms in his Concurring and Dissenting Opinion of 19 December 2000, appended to the Tribunal's Decision No. DEC 130–A28–FT (19 Dec 2000), warrants the present remarks on my part.
2. In para 1 of his Opinion, Mr. Broms states that “[a]s Paragraph 95 in its present form was proposed by the President after the final deliberations had ended, and as the President did not call the members to open further deliberations, the purpose of the two sentences remains unclear.” To the extent that this statement is suggesting that the Members were not given full opportunity to offer their views in the deliberative process leading to the Decision in this Case, the statement is wrong. It is unclear what Mr. Broms means by “final” deliberations. Deliberations may, and in fact do, continute until the last moment before the filing of a Decision or Award. Deliberations take place during formal meetings of Members of the Tribunal; and, in addition, they take place through less formal exchanges (whether written or oral or both) among Members. This is also what took place in the present Case. At all stages of the Tribunal's work on the Decision, all Members were given ample opportunity to present their views, either orally or in writing, on each and every issue that arose in this Case–including Paragraph 95 of the Decision.
3. Furthermore, I note with regret that Mr. Broms' Opinion in a number of instances contravenes the rule of confidentiality of the Tribunal's deliberations, as set forth in Note 2 to Article 31 of the Tribunal Rules (see, in particular, paras 1 and 5 of Mr. Broms's Opinion).

Statement by the President, Krzysztof Skubiszewski, Case No. A/28, Full Tribunal (21 Dec 2000), at 1–2.

In the same context, I want to underline that the Challenge should have respected my right to give my Opinion so as to explain my legal understanding of the Decision without breaching the Rules of the Tribunal. Article 32(3) provides as follows:
(p. 784)
Any Arbitrator may request that his dissenting vote or his dissenting vote and the reasons therefore be recorded.
That right belongs to all members of the Tribunal and the United States should respect. The United States cannot expect that I have to agree with the views of the United States. Such an attitude is totally against the principles of the impartiality and independence of the arbitrators, and, at the same time, it is also against the basic principles of the whole institute of arbitration.

Letter from Judge Bengt Broms to the Appointing Authority, Sir Robert Jennings, dated 22 Feb 2001, at 1–2.

I am, however, reluctant to endorse any purported general rule of thumb test in this matter of confidentiality. Each case should be judged on the merits. No doubt a revelation limited to a judge's own view may in certain cases be a relatively venial breach of the confidentiality rule. But Judge Broms' statement of his own view that three other Members appeared to agree with one of his views was in any event a step too far.
A rule of confidentiality of the deliberations must, if it is to be effective, apply generally to the deliberation stage of tribunal's proceedings and cannot realistically be confined to what is said in a formal meeting of all the members in the deliberation room. The form or forms the deliberation takes varies greatly from one tribunal to another. Anybody who has had experience of courts and tribunals knows perfectly well that much of the deliberation work, even in courts like the ICJ which have formal rules governing the deliberation, is done less formally. In particular the task of drafting is better done in small groups rather than by the whole court attempting to draft round the table. Revelations of such informal discussion and of suggestions made, could be very damaging and seriously threaten the whole deliberation process. There is no doubt then that the quoted passage in paragraph 1 of Judge Broms' Opinion was a breach. This, as well as the breaches in his paragraphs 2 and 5, were serious breaches of the confidentiality rule.
Dealing with this confidentiality breach as such is not, however, a matter for the Appointing Authority. The breach of confidence in the present case was viewed by the President as a matter calling for his immediate action, and resulted in the Statement of the President of 21 December 2000. In my view these instances of a breach of the rule of confidentiality in the present case have by this statement from the President already been properly and correctly dealt with by the President. My only (p. 785) concern, as the Appointing Authority, is what is the effect of the terms of Judge Broms' “concurring and dissenting Opinion” on the question of his impartiality and his independence. A judge may be strictly and correctly impartial and independent though massively indiscreet and forgetful of the rules.
The attention of the Appointing Authority is therefore to be paid to these breaches solely as a factor in a decision on the “justifiable doubt” question.…

Decision of Sir Robert Jennings, Appointing Authority, on the Challenge of Judge Broms (7 May 2001), at 7.

D Extracts from the Practice of NAFTA Tribunals

18. Presiding Arbitrator
1. 18.1 As provided in Article 31(2) of the UNCITRAL Arbitration Rules, the Presiding Arbitrator is authorized to decide questions of procedure alone, subject to revision, if any, by the Tribunal.
2. 18.2 The Presiding Arbitrator is authorized to sign Procedural Orders on behalf of the Tribunal.
3. 18.3 All members of the Tribunal shall physically participate in deliberations amongst themselves (whether in person, by telephone or otherwise) as well as in hearings and meetings with the parties, save for telephone conferences on procedural matters between the Presiding Arbitrator and counsel to the parties unless a party specifically requests that all members of the Tribunal participate in the telephone conference. The Presiding Arbitrator shall ensure that the co–arbitrators are timely and adequately appraised of such conferences.

International Thunderbird Gaming Corp. and The United Mexican States, Procedural Order No. 1 (NAFTA Chapter Eleven, 27 Jun 2003), available at http://www.economia.gob.mx/index.jsp?P=2259.

E Extracts from the Practice of Ad Hoc Tribunals

This Opinion is confined to the findings of the Tribunal concerning Structure A, and addresses two distinct issues.
The first issue relates to the finding of the Tribunal (Section 3 of C.II at p.37) “that, in order for the Claimants to exercise their rights under the (p. 786) EPSA in respect of this area, the relinquishment provisions under Article XI apply to such Structure A only from the date the Claimants are permitted to exploit this area under the EPSA provisions”. On this question, I agree with the conclusion of the Tribunal on the precise point of principle involved, but with respect am unable to agree with the reasoning which lies behind the conclusion.

Wintershall AG, et al. and The Government of Qatar, Partial Award on Liability (29 Jan 1988), Separate Opinion of Professor Ian Brownlie (29 Jan 1988), at 1, reprinted in (1989) 28 ILM 827, 827.

[74] On 9 September 1999, Karim Sani [Counsel for Respondent] wrote to the following effect:
We cannot accept this order, not only on account of its content but also its form. This order purports to emanate from the full Tribunal, yet it has been signed only by the Chairman, and it contains no indication as to the disposition of the other arbitrators on the matter. We are not prepared to accept that this is a reasoned decision of all three arbitrators and, in accordance with Art. 32(4) of the UNCITRAL Rules, require that the order be signed by all arbitrators or, if not agreed by all, that the reasons of the dissenting arbitrator be clearly stated in writing.…
[75] On 13 September 1999, the Arbitral Tribunal answered:
Your letter of 9 September 1999 purports to “require” that the Arbitral Tribunal's Procedural Order of 7 September 1999 be signed in accordance with Art. 32(4) of the UNCITRAL Rules.
No Procedural Orders in these proceedings have been rendered under Art. 32 of the UNCITRAL Rules, which concerns awards. Your “requirement” is therefore not accepted by the Arbitral Tribunal. All Procedural Orders, including that of 7 September 1999, were rendered pursuant to paragraph 3(b) of the Terms of Appointment, and in conformity with Art. 31 of the UNCITRAL Rules. The Procedural Order of 7 September 1999 self–evidently has the further specific basis of Art. 28 of the UNCITRAL Rules.
A number of important issues have been dealt with by the Arbitral Tribunal under my sole signature without demur. Taking the month of June alone, I refer you to letters signed by myself, announcing decisions of the Arbitral Tribunal, on the 9th, 15th, 16th, 18th, 24th, and 25th. For you to affirm at this late date that you find the procedural order of 7 September to be unacceptable is difficult to square with Art. 30 of the UNCITRAL Rules.

(p. 787)

[87] On 17 September 1999, the Arbitral Tribunal wrote to Karim Sani:
With reference to comments made in your letter dated 9 September 1999, and considering your failure to avail yourself of the opportunity given to the Republic of Indonesia by the Arbitral Tribunal to reverse its default posture by 17 September (as I write it is midnight in Jakarta and the end of the business day in Paris), I view it as appropriate to record that your speculation about Procedural Orders reflecting the President's “personal opinion” or the possibility that there might be a “dissenting arbitrator”, are quite unfounded. All submissions of the Parties have been considered and discussed by all three arbitrators. Although it would be entirely inappropriate to reveal the inner workings of the Arbitral Tribunal, I can inform you that the Procedural Orders of 11 August and 7 September 1999 were the fruit of extensive discussion, and even in–person deliberations, of all three arbitrators. The text of this letter itself has been reviewed by, and discussed with, both of my co–arbitrators.
It is improper for any party to probe the secrecy of deliberations. That confidentiality, a fundamental element of the arbitral process, is intended to ensure that each arbitrator is able to exercise his or her independent judgment in a collegial context free of any outside influence. I shall not comment on any criticisms of my personal conduct, but as President of the Arbitral Tribunal I find it disturbing that your letter pervasively focuses on what you imagine to be individual positions of the arbitrators. My co–arbitrators are to be treated as persons of independent mind, and your statement that “as we suspected, … at least two members of the tribunal are biased” is quite unacceptable.

Himpurna California Energy Ltd and Republic of Indonesia, Interim Award (Ad Hoc UNCITRAL Proceeding, 26 Sep 1999), reprinted in (2000) XXV YCA 109, 146–47, 152.(p. 788)

Footnotes:

1 The Iran-US Claims Tribunal adopted Article 31 of the UNCITRAL Rules unchanged and added the following notes:

1. Any award or other decision of the arbitral tribunal pursuant to paragraph 1 of Article 31 shall be made by a majority of its members.
2. The arbitral tribunal shall deliberate in private. Its deliberations shall be and remain secret. Only the members of the arbitral tribunal shall take part in the deliberations. The Secretary–General may be present. No other person may be admitted except by special decision of the arbitral tribunal. Any question which is to be voted upon shall be formulated in precise terms in English and Farsi and the text shall, if a member so requests, be distributed before the vote is taken. The minutes of the private sittings of the arbitral tribunal shall be secret.

2 The appointment of a sole arbitrator under the Article 6 of the UNCITRAL Rules is discussed in Chapter 4, section 3.

3 The provision is easily adaptable to situations where more than three arbitrators comprise the arbitral tribunal. The Iran-US Tribunal, for example, adhered to the principle of majority rule when making decisions as a Full Tribunal of nine members. See Note 1 to Tribunal Rule 31, reprinted above, n 1.

4 The principle of majority rule obviously also encompasses cases of unanimity among the arbitrators. As Sanders explained, the provision accounts for “different customs in various parts of the world,” such as Asia, where there is “a marked preference for unanimity in making arbitral awards and conciliation was generally preferred to arbitration.” Summary Record of the 11th Meeting of the Committee of the Whole (II), UNCITRAL, 9th Session, UN Doc A/CN.9/9/C.2/SR.11, at 2, para 3 (1976).

5 It is unclear from the available travaux préparatoires when the additional text (“or other decision”) was added, although it appears to have occurred sometime after the Commission's discussion of the Revised Draft, which did not include the phrase. See Report of the Secretary–General on the Revised Draft Set of Arbitration Rules, UNCITRAL, 9th Session, UN Doc A/CN.9/112 (1975), reprinted in (1976) VII UNCITRAL Ybk 157, 165 (Draft Article 27(3)).

6 Report of the Secretary–General on the Revised Draft Set of Arbitration Rules, UNCITRAL, 9th Session, Addendum 1 (Commentary), UN Doc. A/CN.9/112/Add.1 (1975), reprinted in (1976) VII UNCITRAL Ybk 166, 178 (“[I]t is not required that the presiding arbitrator be one of the two arbitrators who agree on the award.”). A recent example of such an award, although not rendered under the UNCITRAL Rules, is Tokios Tokelés and Ukraine, ICSID Case No. ARB/02/18, Decision on Jurisdiction (29 Apr 2004) (Prosper Weil, President of the Tribunal, dissenting), available at http://www.worldbank.org/icsid/cases/awards.htm.

7 Summary Record of the 11th Meeting of the Committee of the Whole (II), UNCITRAL, 9th Session, UN Doc A/CN.9/9/C.2/SR.11, at 2, para 6 (1976) (Comments by Mr. Mantilla–Molina, Mexico).

8 See respectively ibid, para 9 (Comment by Ms. Oyekunle, Nigeria) and ibid, para 10 (Comments by Mr. Holtzmann, United States).

9 Summary Record of the 10th Meeting of the Committee of the Whole (II), UNCITRAL, 9th Session, UN Doc A/CN.9/9/C.2/SR.10, at 10, paras 78, 81 (1976) (Comments by Mr. Szasz, Hungary, and Mr. Melis, Austria).

10 See Summary Record of the 10th Meeting of the Committee of the Whole (II), UNCITRAL, 9th Session, UN Doc A/CN.9/9/C.2/SR.10, at 10, para 79 (1976) (Comment by Mr. Holtzmann, United States). Mr. Melis of Austria, however, raised the counter–argument that, as the ICC's dead–locking breaking provision, in his understanding, had only been invoked once in 50 years, the danger of abuse was outweighed by the advantage of avoiding a deadlock among arbitrators. See ibid, para 81.

11 Summary Record of the 11th Meeting of the Committee of the Whole (II), UNCITRAL, 9th Session, UN Doc A/CN.9/9/C.2/SR.11, at 3, para 7 (1976) (Comments by Mr. Boston, Sierra Leone).

12 See below, section B(2).

13 According the commentary to the Revised Draft, “[i]f a majority of the arbitrators fail to agree on an award, the arbitral tribunal must resolve the deadlock in accordance with the relevant law and practice at the place of arbitration,” which in many jurisdictions require arbitrators to “continue their deliberations until they arrive at a majority decision.” Report of the Secretary–General on the Revised Draft Set of Arbitration Rules, UNCITRAL, 9th Session, Addendum 1 (Commentary), UN Doc A/CN.9/112/Add.1 (1975), reprinted in (1976) VII UNCITRAL Ybk 166, 178. See also Model Law, Article 29 (requiring decisions by a majority of the arbitrators).

14 P Sanders, “Commentary on UNCITRAL Arbitration Rules,” (1977) II YCA 172, 208.

15 A Redfern & M Hunter, Law and Practice of International Commercial Arbitration (3rd edn, 1999) 376.

16 This attribute of a majority award may be more attractive in the context of politically sensitive disputes, such as arbitration involving one or more sovereign parties. See M Pellonpää, “The Process of Decision–Making,” in D Caron & J Crook (eds), The Iran-United States Claims Tribunal and the Process of International Claims Resolution (2000) 238.

17 For an overview of decision–making at the Tribunal, see Pellonpää, above, n 16. For enlightening discussions on the interpersonal dynamics of Tribunal decision–making by Judge Charles Brower (US), Judge Nils Mangård (Swedish), and Judge Ansari Moin (Iran), see ibid at 249, 253, 263.

18 “Tribunal Approves Settlement from Security Account,” IALR 4562, 4563 (7 May 1982). See also Minutes of the 71st Meeting of the Full Tribunal, 7 Jan 1983.

19 S Baker & M Davis, The UNCITRAL Arbitration Rules in Practice: The Experience of the Iran-United States Claims Tribunal (1992) 154. It is virtually impossible to deduce the level of bargaining, if any, from the awards or decisions in which no separate opinion was filed by the second arbitrator joining in the majority. Further, Article 31, Note 2, of the Tribunal Rules of Procedure, requiring that deliberations must remain secret, prohibits any additional revelations regarding the process of deliberation. See below, section B(3) regarding the rule of confidentiality of deliberations.

It is also noteworthy that one member of the Tribunal expressed concerns that the majority vote requirement could be undermined by the chair if he or she cast the decision in the case as a series of votes. See separate opinions of Judge Mosk in Ultrasystems Incorporated and Case No. A/11, reprinted below, section C(1).

20 See G Aldrich, The Jurisprudence of the Iran-United States Claims Tribunal (1996) 43. For extracts of concurring opinions by American arbitrators, see below, section C(1).

21 Economy Forms Corp., Concurring Opinion of Howard M Holtzmann, reprinted below, section C(1).

22 Case Concerning the Arbitral Award of 31 July 1989 (Guinea–Bissau v. Senegal), ICJ Reports 1991 at 40.

23 “The Majority Vote of an International Arbitral Tribunal,” in S Schwebel, Justice in International Law: Selected Readings (1994) 213. For another example from the practice of ad hoc tribunals, see Professor Brownlie's concurring opinion in Wintershall AG, reprinted below, section E.

24 See Statement of the President, Iran and United States, Case No. A/28 (21 Dec 2000) at 1–2 (describing the process of deliberation).

25 Texts Adopted as Internal Guidelines of the Tribunal (Rev 1), 3(a)–(b).

26 See M Pellonpää above, n 16, at 235. Establishing certain basic parameters for deliberating is, of course, useful. See International Thunderbird Gaming Corp., reprinted below, section D.

27 See Summary Record of the 10th Meeting of the Committee of the Whole (II), UNCITRAL, 9th Session, UN Doc A/CN.9/9/C.2/SR.10, at 10, para 79 (1976) (Comment by Mr. Holtzmann, US); ibid at para 80 (Comment by Mr. St. John, Australia). According to Baker and Davis, an early draft of this exception covered “procedural or interim matters,” but “interim matters” was deleted to avoid confusion. S Baker & M Davis above, n 19, at 155.

28 See International Systems & Controls, Dissenting Opinion of Judge Brower, reprinted below, section C(2).

29 For an example of authorization, see International Thunderbird Gaming Corp., reprinted below, section D.

30 See below, section B(2)(c).

31 Summary Record of the 6th Meeting of the Committee of the Whole (II), UNCITRAL, 9th Session, UN Doc A/CN.9/9/C.2/SR.6, at 11, para 97 (1976) (Comment by Mr. Strauss, Observer).

32 For an explanation of the differences between the Model Law and the Rules, see H Holtzmann & J Neuhaus, A Guide to the UNCITRAL Model Law on International Commercial Arbitration: Legislative History and Commentary (1989) 809–10.

33 See Communication to the Parties, Fereydoon Ghaffari and The Islamic Republic of Iran, Case No. 968 at 1 (10 Feb 1988) (indicating that the practice of Chamber Two is to communicate questions of procedure to the parties by an order).

34 For a discussion of the signature requirement, see Chapter 22, section 4.

35 Specifically, the provision provides: “After the effective date of a member's resignation he shall continue to serve as a member of the Tribunal with respect to all cases in which he had participated in a hearing on the merits, and for that purpose shall be considered a member of the Tribunal instead of the person who replaces him.”

36 For purposes of all matters other than Case No. 48, Judge Virally had replaced Judge Mångard.

37 Memorandum from the President Regarding the Question of Whether Article 13, paragraph 5, of the Tribunal Rules Applies to Mr. Mangård, American Bell International Inc. and The Government of the Islamic Republic of Iran, Case No. 48 (12 Sep 1985), reprinted in 9 Iran-US CTR 409 (1985–II). Whether or not Judge Böckstiegel exercised his rights pursuant to Article 31(2) is disputed. While Judge Böckstiegel specified that the order was made “without prejudice to the President's power to act pursuant to Article 31, paragraph 2,” ibid at 410, Judge Brower concluded that “[t]he only course open to the President that would not have impaired our institutional integrity would have been … in the exercise of his powers under Article 31(2) to confirm such application. American Bell International Inc. and The Government of the Islamic Republic of Iran et al., Case No. 48, Memorandum from the President of the Tribunal (12 Sep 1985), Dissent by Charles N Brower (20 Sep 1985), reprinted in 9 Iran-US CTR 410, 413 (1985–II).

38 Ibid at 410.

39 Ibid.

40 Ibid.

41 Ibid at 412.

42 See, e.g. Case No. B1, Dissenting Opinion of Mr. Ameli; International Systems & Controls Corp., Dissenting Opinion of Judge Brower; American Bell International, Inc., Dissent by Charles Brower, reprinted below, section C(2).

43 Iran and United States, Case No. B1, Full Tribunal, Order of 2 Jul 1987, reprinted in 18 Iran-US CTR 45 (1987).

44 Dissenting Opinion of Mr. Ameli, reprinted in 18 Iran-US CTR 47, 47–48 (1988–I).

45 Ibid at 47.

46 An early draft of the Rules made reference to “procedural questions and interim matters,” but latter term was deleted on grounds that it might be confused with “interim awards.” See Summary Record of the 17th Meeting of the Committee of the Whole (II), UNCITRAL, 9th Session, UN Doc A/CN.9/9/C.2/SR.17, at 2, para 1 (1976) (Comment by Mr. Lebedev, USSR); See also S Baker & M Davis above, n 19, at 155.

47 Difficulties with respect to the distinction also arise in the context of award making. See Chapter 22, section 1.

48 In regard to the Model Law, there is general consensus that since the arbitral tribunal has the power to decide questions of procedure and substance, it is entitled to define the differences between these questions. See UN Doc A/CN.9/SR.327, para 44 (Comments of the Secretary of the Working Group); F Knoepfler and P Scweizer, “Making of Awards and Termination of Proceedings,” in P Šarčević (ed), Essays on International Commercial Arbitration (1989) 163. But see F Davidson, International Commercial Arbitration: Scotland and the UNCITRAL Model Law (1991) 157 (questioning whether the law of the forum confers this power on the arbitral tribunal).

49 P Sanders (1977) above, n 14, at 194.

50 Ibid at 194–95.

51 Ibid at 201–02.

52 Ibid at 203.

53 As Judge Brower has noted, even the treatment of procedural questions by a tribunal can affect the substantive rights of a party. See Brower above, n 17, at 251. See also Case No. B1, Dissenting Opinion of Mr. Ameli, reprinted below, section C(2) (“Although the questions involved in this Order are procedural, they are nevertheless highly significant and any attempt to change the course of the proceedings may eventually change the fate of this multibillion dollar Claim.”).

54 In Case No. B1, Judge Ameli suggested that the degree to which a procedural decision is outcome–determinative should affect the presiding arbitrator's authority to act on his own. Dissenting Opinion of Judge Ameli to the Order of 2 July 1987, Islamic Republic of Iran and United States, Case No. B1 (17 Jul 1987), reprinted in 18 Iran-US CTR 47, 48 (1988–I). While this factor may affect the manner in which the presiding arbitrator exercises his unilateral powers, it should not be deemed as circumscribing those powers. See J van Hof, Commentary on the UNCITRAL Arbitration Rules: The Application by the Iran-U.S. Claims Tribunal (1991) 214 (indicating that Judge Ameli would have been more persuasive if he had argued that “the consequences of the procedural decisions would have a direct and inevitable impact on substantive questions.”).

55 F Knoepfler & P Scweizer above, n 48, at 163 (favoring a restrictive interpretation of the term “questions of procedure”).

56 On the final and binding effect of awards, see Chapter 22, section 2(B)(2).

57 The power to revise a procedural decision was introduced late in Committee negotiations as part of a revised draft of what ultimately became Article 31(2). See Summary Record of the 17th Meeting of the Committee of the Whole (II), UNCITRAL, 9th Session, UN Doc A/CN.9/9/C.2/SR.17, at 2 (1976) (referring to Report of the Drafting Group on a new Article 26 bis in section IV (France and Federal Republic of Germany), UN Doc A/CN.9/IX/C.2/CRP.27 (restricted circulation)).

58 The little recorded discussion on revision by the UNCITRAL drafters only confuses the matter. The delegate from the Federal Republic of Germany, whose working draft introduced the revision power to the Rules, explained that revision might be useful where a presiding arbitrator initially has acted on his own in opposition to his colleagues, but comes to “accept the view of the other two arbitrators.” Summary Record of the 17th Meeting of the Committee of the Whole (II), UNCITRAL, 9th Session, UN Doc A/CN.9/9/C.2/SR.17, at 2, para 5 (1976). Such an example, however, reduces revision to a mere consultative power, something that the arbitrators already possess without Article 31(2). Thus, to be efficacious at all, revision must empower the party–appointed arbitrators effectively to challenge the presiding arbitrator on matters of procedure.

59 Ibid, para 6.

60 Ibid, para 7 (Comments by Mr. Roehrich, France).

61 See, e.g. Request for Revision by the Iranian Agent, Islamic Republic of Iran and United States of America, Case No. B1 (12 Dec 1986) (requesting revision of Tribunal order requiring US comments on Iran's request for document production); Letter from the US Agent, United States and Iran, Case No. A/33 (26 Mar 2002) (requesting reconsideration of Tribunal order scheduling hearings in Case No. B1 (Counter–claim) before those in Case No. A/33).

62 Paragraph 9, Code of Ethics for International Arbitrators, IBA (1987). See also R Bernhardt (ed), 1 Encyclopedia of Public International Law (1981) 185 (“Art. 54(3) of the ICJ Statute, which provides that “the deliberations of the Court shall take place in private and remain secret,” represents a practice of such widespread application as to be arguably a general principle of law); Unidyne Corp., Supplemental Opinion of Arangio–Ruiz and Allison, reprinted below section C(3) (commenting on the rule of confidentiality “so widely accepted in international dispute settlement.”).

63 In addition, Note 2 to Article 31 provides that Tribunal deliberations are restricted to the Members of the Tribunal and the Secretary–General, although in practice the Members' legal assistants are regularly in attendance. Others may be admitted to deliberations by special decision of the Tribunal, and on occasion the Agents of the government parties have participated in Full Tribunal deliberations. The provision requiring, if requested, formulation and distribution of a question for deliberation in Farsi (in addition to English) before a vote is taken has rarely been utilized.

64 Decision of the Appointing Authority, Sir Robert Jennings, on the challenge of Judge Bengt Broms (7 May 2001), at 5. See also Himpurna California Energy Ltd, para 87, reprinted below section E (“confidentiality, a fundamental element of the arbitral process, is intended to ensure that each arbitrator is able to exercise his or her independent judgment in a collegial context free of any outside influence.”).

65 See Decision of Justice Ch M J A Moons, Appointing Authority (19 Sep 1989), reprinted below section C(3). Baker & Davis rightly observe that such pressure from the parties would produce a “chilling effect” on the openness and frankness of deliberative debate. S Baker & M Davis above, n 19, at 157. The Iran-US Claims Tribunal has maintained that even inquiries as to the status of deliberations runs afoul of Article 31, Note 2 of the Tribunal Rules. See Uiterwyk Corp., reprinted below, section C(3).

66 See P Sanders (1977) above, n 14, at 208; Raygo Wagner Equipment Co., Comments of Richard M Mosk with Respect to Mr. Jahangir Sani's Reasons For Not Signing The Decision in Case No. 17; Granite State Machine Co., Inc., Concurring Opinion of Richard M Mosk, reprinted below, section C(3).

67 See, e.g. Rexnord, Inc., Concurring Opinion of Richard M Mosk, reprinted below, section C(3); ITT Industries, Inc. and The Islamic Republic of Iran et al., Award No. 47–156–2 (26 May 1983), Note by Dr. Shafie Shafeiei Regarding the “Concurring Opinion of George H Aldrich,” (19 Aug 1983), reprinted in 2 Iran-US CTR 356, 356–58 (1983–I). See also S Baker & M Davis above, n 19, at 37–39, 159.

68 See [Iran's] Response to the Few Technical Points on Which the Appointing Authority Invited Comments, Challenge to Judge Briner (Undated), reprinted in 21 Iran-US CTR 360, 364–66 (1989–I). For a description of controversial comments made by Judge Khalilian, see Supplemental to the Statement by Judge Khalilian, Phillips Petroleum Company Iran and The Islamic Republic of Iran, Case No. 39 (29 Jun 1989), reprinted in 21 Iran-US CTR 245 (1989–I).

69 [Iran's] Response to the Few Technical Points on Which the Appointing Authority Invited Comments (Undated), reprinted in 21 Iran-US CTR 360, 366 (1989–I). For the US Response, see Letter, The Agent of the United States to the Appointing Authority (8 Aug 1989), reprinted in 21 Iran-US CTR 349, 349 (1989–I) (maintaining that “it is inappropriate to consider a challenge based on material provided in violation of the Tribunal Rules, for this could encourage such violations in the future.”).

70 Letter regarding Iran's Response to United States' Notice of Challenge of Honourable Judge Broms, The Agent of the Islamic Republic of Iran (15 Feb 2001), at 10–12. For the US position, see US Notice of Challenge of Arbitrator Bengt Broms from the Agent of the United States to the Appointing Authority (4 Jan 2001), at 5–6. For another earlier instance in which Iran made the same argument, see also Mr. Jahangir Sani's Reply to Mr. Mosk's “Comments” of 3 March 1983 Concerning Case No. 17, Raygo Wagner Equipment and Star Line Iran Company, Case No. 17, Chamber Three (7 Apr 1983).

71 Decision of Justice Moons, Appointing Authority (19 Sep 1989), reprinted below, section C(3).

72 Decision of Sir Robert Jennings, Appointing Authority (7 May 2001), reprinted below section C(3). Interestingly, the Appointing Authority drew a distinction in propriety between the disclosure of an arbitrator's own comments and those of another. While the former may be in some cases merely a “venial breach of the confidentiality rule,” opined the Appointing Authority, Judge Broms' revelation of his belief that three other members of the Tribunal shared his position was “a step too far” resulting in an undisputed violation of confidentiality. As to Judge Broms' comments regarding the conduct of deliberations in respect of the drafting of Paragraph 95, the Appointing Authority found also that a serious breach of confidentiality had occurred.

73 See above Section entitled “The Practice of Deliberating and Drafting Awards by the Iran-US Claims Tribunal.” See also Statement of the President, The United States of America and The Islamic Republic of Iran, Case No. A/28 (21 Dec 2000), reprinted below, section C(3) (questioning Judge Broms' use of the term “final deliberations,” the President noted that “[d]eliberations may, and in fact do, continue until the last moment before the filing of a Decision or Award,” taking place through “formal meetings” and “less formal exchanges (whether written or oral or both)” among the arbitrators.).

74 Mr. Jahangir Sani's Reasons for Not Signing the Decision Made by Mr. Mangård and Mr. Mosk in Case No. 17 (Raygo Wagner Equipment), reprinted in 1 Iran-US CTR 415, 415–16 (1981–82).

75 Mr. Jahangir Sani's Reply to Mr. Mosk's “Comments” of 3 Mar 1983 Concerning Case No. 17 (Raygo Wagner Equipment), reprinted in 1 Iran-US CTR 428, 430 (1981–82).

76 For more discussion on this obligation, see Chapter 22, section 2(B)(4).

77 Unidyne Corp., Dissenting Opinion of Mohsen Aghahosseini, reprinted below, section C(3).

78 Unidyne Corp., Supplemental Opinion of Judge Arangio–Ruiz and Judge Allison, reprinted below, section C(3) (criticizing Judge Aghahosseini).

79 Unidyne Corp., A Statement in Case No. 368 by Mohsen Aghahosseini, reprinted below, section C(3).

80 “Of course, if there are allegations that the deliberation process wrongfully excluded an arbitrator or that another arbitrator otherwise acted in an improper manner, then such allegations can be disclosed.” R Mosk & T Ginsberg, “Dissenting Opinions in International Arbitration,” in M Tupamäki (ed), Liber Amicorum Bengt Broms (1999) 5.

81 See Article 27 of the ICC Rules of Arbitration entitled “Scrutiny of the Award by the Court.”

82 See, e.g. Mr. Jahangir Sani's Reasons for Not Signing the Decision Made by Mr. Mangård and Mr. Mosk in Case No. 17 (Raygo Wagner Equipment), reprinted in 1 Iran-US CTR 415 (1981–82).

83 Comments of Richard M Mosk with respect to Mr. Jahangir Sani's Reasons for not Signing the Decision Made by Mr. Mangård and Mr. Mosk in Case No. 17 (Raygo Wagner Equipment) (arguing that Judge Sani's statement was not part of the award and thus was subject to the rule of confidentiality); Further Comments of Richard M Mosk (Raygo Wagner Equipment), reprinted below, section C(3). Rexnord, Inc. and The Islamic Republic of Iran et al., Award No. 21–132–3 (10 Jan 1983), Concurring Opinion of Richard M Mosk (13 Apr 1983), reprinted in 2 Iran-US CTR 27, 29 (1983–I).

84 Statement by the President, Case No. A/28, reprinted below, section C(3). See also Supplemental Statement of George H Aldrich (Phillips Petroleum Company Iran), reprinted below, section C(3).

85 Indeed, arbitrators always have been entitled to file their submissions directly with the Tribunal Registry for transmission to the parties without any circulation to other members for review.

86 Statement by the President, Case No. A/28, reprinted below section C(3). In the subsequent challenge of Judge Broms, Sir Robert Jennings, acting as Appointing Authority, stated that the President's statement correctly handled Judge Broms' breach of the rule of confidentiality. Decision of Sir Robert Jennings, Appointing Authority, reprinted below, section C(3).

87 Unidyne Corp., Supplemental Opinion of Arangio–Ruiz and Allison, reprinted below, section C(3).

88 A Statement in Case No. 368 (Unidyne Corp.) by Mohsen Aghahosseini; Letter from Judge Bengt Broms to the Appointing Authority, reprinted below, section C(3).

89 The same risk exists when an arbitrator divulges his views in the course of assisting in the settlement of a case. See Chapter 23, section 2(B)(1)(a).

90 Memorandum in Support of the Challenge by the United States of Mr. Bengt Broms (4 Jan 2001) at 5.

91 Ibid at 6.

92 Ibid at 13–15.

93 Decision of Sir Robert Jennings, Appointing Authority, reprinted below, section C(3).

94 Decision at 11.

[Footnote] 2. Such a majority is required by Article 31, paragraph 1 of the Tribunal Rules. See Sanders, Commentary on UNCITRAL Arbitration Rules, II [1977] Yearbook Commercial Arbitration 172, 208.

[Footnote] 1. As Professor Pieter Sanders has written, arbitrators are “forced to continue their deliberations until a majority, and probably a compromise solution, has been reached.” Sanders, Commentary on UNCITRAL Arbitration Rules, 1977 II Yearbook Commercial Arbitration 172, 208. If no majority can be reached, no award can be rendered, thus creating a great injustice to the parties.

[Footnote] 2. Canon VI of the American Arbitration Association Code of Ethics for Arbitrators in Commercial Disputes; Rule 2(2) of the Internal Rules of the Court of Arbitration of the International Chamber of Commerce; Nuclear Text Case (Australia v. France) 1973 I.C.J. 99; 1974 I.C.J. 253, 273 (declaration of Lachs, J.) and 293–296 (separate opinion of Gros, J.).

[Footnote] 3. After the award was prepared, but before its release, the Chamber was informed that the Respondents in the instant case initiated settlement negotiations.…

[Footnote] 6. I am well aware of, and intend to observe, the rule on the confidentiality of deliberations. It is for that reason that references in that regard will be made in most general terms, and only when they are absolutely necessary for the present purposes.

[Footnote] 1. Judge Aghahosseini does not mention that he absented himself from the Chamber's oral deliberations immediately after the hearin; declared his unwillingness to participate therein; and refused in writing to resume his participation despite repeated written invitations to do so. The Chamber thereafter continued deliberations by trilateral written exchanges.

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