1 The Iran-US Claims Tribunal determined, in adopting the Tribunal Rules, that: “No Notice of Arbitration pursuant to Article 3 of the UNCITRAL Rules is to be given.”
2 Note that the national law or treaty governing the arbitral process may impose additional notice requirements. See, e.g. NAFTA, Chapter Eleven, Sub–chapter B, Art 1126 (requiring the delivery of written notice of an arbitral claim to NAFTA Parties other than the respondent within 30 days from the date the claim is submitted).
3 Report of the Secretary–General on the Preliminary Draft Set of Arbitration Rules, UNCITRAL, 8th Session, UN Doc A/CN.9/97 (1974), Reprinted in (1975) VI UNCITRAL Ybk 163, 167 (Commentary on Draft Article 3).
4 As adopted by the Commission, Article 3(1) is modeled after similar provisions in Article 3 of the ECE Arbitration Rules; Article II, paragraph 3 of the ECAFE Arbitration Rules, section 7 of the Commercial Arbitration Rules of the AAA, and section 7 of the Rules and Procedures of the Inter–American Commercial Arbitration Commission. Report of the Secretary–General on the Revised Draft Set of Arbitration Rules, UNCITRAL, 9th Session, Addendum (Commentary), UN Doc A/CN.9/112/Add.1 (1975), Reprinted in (1976) VII UNCITRAL Ybk 166, 168 (Commentary on Draft Article 4).
5 See SD Myers, Reprinted below, section C.
6 Report of the Secretary–General on the Preliminary Draft Set of Arbitration Rules, UNCITRAL, 8th Session, Addendum 3 (Observations), UN Doc A/CN.9/97 (1974), Annex II.
7 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, 168 (Commentary on Draft Article 4(2)).
8 Report of the UNCITRAL, 8th Session, Summary of Discussion of the Preliminary Draft, UN Doc A/10017, para 24 (1975), Reprinted in (1975) VI UNCITRAL Ybk 24, 27.
9 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, 167 (Commentary on Draft Article 3(1)).
10 Report of the Secretary–General on the Preliminary Draft Set of Arbitration Rules, UNCITRAL, 8th Session, UN Doc A/CN.9/97 (1974), Reprinted in (1975) VI UNCITRAL Ybk 163, 167 (Commentary on Draft Article 3(2)).
11 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, 168 (Commentary on Draft Article 4).
13 Summary Record of the 2nd Meeting of the Committee of the Whole (II), UNCITRAL, 9th Session, UN Doc A/CN.9/9/C.2/SR.2, at 7–8 (1976).
16 The distinction between Articles 3 and 18 was recognized in Ethyl Corporation, Reprinted below, section C.
17 Report of the UNCITRAL on the Work of its Sixth Session, UN GAOR, 28th Session, Supp No. 17, UN Doc A/9017, para 85 (1973).
18 G Aksen, “The Iran-United States Claims Tribunal and the UNCITRAL Arbitrations Rules, an early comment,” in J Schultsz & A van den Berg (eds), The Art of Arbitration (1982) 1. See also Chapter 11, section 2 on article 18, below.
19 The specific provision of the Dutch Code of Civil Procedure referred to, provides that the “arbitration agreement…must be made in writing and signed by the parties….” Dutch Code of Civil Procedure, Art 623(1) (Unofficial translation prepared by the Asser Institute, 1980). The arbitration agreement is also significant because such a writing is essential to the enforceability of the award, given that the “in writing” requirement is also set forth in the New York Convention. In particular, Article IV of the New York Convention requires that to obtain recognition and enforcement, the party applying shall present the award and the arbitration agreement, such agreement, by Article II of the Convention, being in writing by the parties.
Van den Berg states, in the context of the New York Convention, that the purpose of the requirement of a written agreement “is to ensure that a party is aware that he is agreeing to arbitration.” A van den Berg, The New York Convention of 1958: Toward a Uniform Judicial Interpretation (1981) 171. In this sense, the agreement in writing is the objective manifestation of the consent of the parties, the voluntary act that underlies the notion and legitimacy of arbitration.
20 To van den Berg, estoppel, in the context of the New York Convention, would reflect “a fundamental principle of good faith, which principle overrides the formalities required by Article II(2) of the New York Convention.” Ibid at 185.
21 L Hardenberg, “The Awards of the Iran-United States Claims Tribunal Seen in Connection with the Law of the Netherlands,” (Sep 1984) IBL 337, 338, originally published in Dutch as “De Uitspraken van het Iran-United States Claims Tribunal naar Nederlands recht bezian,” (11 Feb 1984) Nederlands Juristenblad 167.
22 Indeed, this problem may explain a less specific statement of a US Department of State official some months after the signing of the Accords: “Upon examination of Dutch law, it became apparent that awards rendered pursuant to the Claims Settlement Declaration would not meet certain procedural requirements for valid arbitral awards under Dutch civil code.” M Feldman, “Implementation of the Iranian Claims Settlement Agreement–Status, Issues and Lessons: View from Government's Perspective,” in M Bender (ed), Private Investors Abroad–Problems and Solutions in International Business (1981) 75, 98.
23 In particular, it could be argued that each State Party possesses the authority to agree to arbitration on behalf of its nationals. As van den Berg wrote in response to Hardenberg, “[i]t is arguable that an arbitration agreement can be considered to be present if one regards Iran and the United States as also representing the interests of their subjects when bringing about the Claims Settlement Declaration.” A van den Berg, “Proposed Dutch Law on the Iran-United States Claims Settlement Declaration, A Reaction to Mr. Hardenberg's Article,” (Sept 1984) IBL 341, 343, originally published in Dutch as “Wetsontwerp Iran-United States Claims Tribunal, Een reactie,” (11 Feb 1984) Nederlands Juristenblad 170 (emphasis in original). Indeed, this position is supported by Article 1(3) of the Tribunal Rules, which provides: “The Claims Settlement Declaration constitutes an Agreement in writing by Iran and the United States, on their own behalves and on behalf of their nationals submitting to arbitration within the framework of the Algiers Declarations and in accordance with the Tribunal Rules.” This provision was added to Article 1 of the UNCITRAL Rules as a part of the Tribunal's modification of those Rules.
24 Georges Delaume has argued that such a form of agreement would be sufficient for ICSID arbitration: “Consent may also result from the investor's acceptance of a unilateral offer from the contracting State involved when that State has already consented to ICSID arbitration in relevant provisions…of a bilateral treaty with the Contracting State of which the investor is a national.” G Delaume, “ICSID Arbitration: Practical Distinctions,” (1984) 1(2) JIA 101, 104. Indeed, the increase in ICSID arbitration in recent years is largely due to the many cases in which the jurisdiction of the Centre is based on a bilateral investment treaty. See S Manciaux, “Investissements étrangers et arbitrages entre États et ressortissants d'autres États: Trente années d'activité du CIRDI” (2004) 191–92. Similarly, although the recent UNCITRAL Model Law on International Commercial Arbitration requires a written agreement to arbitrate, a writing exists if there is “an exchange of statements of claim and defence in which the existence of an agreement is alleged by one party and not denied by another.” Art 7(2), UNCITRAL Model Law on International Commercial Arbitration. See also D Furnish, “Commercial Arbitration Agreements and the Uniform Commercial Code,” (1979) 67 California Law Review 317, 347 (“The arbitration agreement should be made amenable to autonomous creation through the same means recognized for the creation of a sales agreement…”).
25 Tribunal Rules of Procedure, Art 18(1)(a). See below, Chapter 11.
26 Mark Dallal v Bank Mellat,  1 All ER 239, 254.
28 The Islamic Republic of Iran and The United States of America (Jurisdiction Over Claims by a State Party Against Nationals of the Other State Party), Decision 1–A2–FT (13 Jan 1982), Reprinted in 1 Iran-US CTR 101 (1981–1982).
29 As to the Tribunal's relationship to the Dutch legal system, see generally D Caron, “The Nature of the Iran-United States Claims Tribunal and the Evolving Structure of International Dispute Resolution,” (1990) 84 AJIL 104. See also above, Chapter 2, section 3 on Article 15.