In the Flexi-Van Order, the Tribunal supported its fact-finding methodology by pointing out that "[o]ther tribunals which have adjudicated international claims in the past have also . . . required what they considered to be sufficient evidence and from that have drawn reasonable inferences. "44Particularly, the Tribunal cited judge Lauterpacht's separate opinionin the case concerning Certain 117 Norwegian Loans." [S]ome prima facie distribution of the burden of proof there must be . . . . [T]he degree of burden of proof thus to be adduced ought not to be so stringent as to render the proof unduly exacting.45Similarly, the Tribunal found support in the celebrated holding of the Mexican-United States General Claims Commission that "when the claimant has established a prima facie case and the respondent has offered no evidence in rebuttal the latter may not insist that the former pile up evidence to establish its allegations beyond a reasonabledoubt without pointing out some reason for doubting. "46
The failure of a party promptly to voice displeasure with a given course of events in abusiness transaction has been significant in the Tribunal's decisionmaking. For example, in determiningwhether a contract has been breached, generally great emphasis has been placed on whether a party has made a contemporaneous written complaint.82 Silence in the face of apparent nonperformance often leads the Tribunal to draw an adverse inference.83I appreciate that American businessmen often forego making written complaints, in the belief that such protests might jeopardize already fragile business relationships. While I cannot criticize this business approach, it is clear, based on Tribunal127Awards, that failing to object can be expensive if disputes wind up in arbitration.
Similarly, failure to mention a point clearly in correspondence, has led to inferences as to the intent of the party, based on the familiar logic that a party could have mentioned an item specifically if that is what it had intended. In some cases this approach has, in my view, been applied inappropriately, leading me to criticize an award on the ground that "[s]ilence cannot cry so loudly."84
44 Flexi-Van, 1 IRAN-U.S.C.T.R. at 457
451957 I.C.J.9, 34, 39
46Parker Case, 4 R. INT'L ARB. AWARDS 35, 39 (1926).
82See,e.g., Ford Aerospace and Communications Corp. and Government of the Islamic Republic of Iran, et al., Award No. 289-93-1, para. 62 (Jan. 29, 1987), reprinted in 14 IRAN-U.S. C.T.R. 24, 41 (1987) (respondent's failure to raise timely objection toinvoices raises a "presumption that they were, or at least should have been, accepted."); T. C. S. B., Inc., and Islamic Republic of Iran, Award No. 114-140-2, p. 11 (Mar. 16, 1984), reprinted in 5 IRAN-U.S. C.T.R. 160, 170 (1984) (failure to make a timely objection supportedTribunal's conclusion that objections were meritless); Harnischfeger Corp. and Ministry of Roads and Transportation, et al., Partial Award No. 144-180-3, p. 27 (July 13, 1984), reprinted in 7 IRAN-U.S. C.T.R. 90, 106 (1984) (evidence that respondent failed to object to invoices held to be relevant to validity of later objections).
83See, e.g., FMC Corp. and The Ministry of National Defence,et al., Award No. 292-353-2, para. 60 (Feb. 12, 1987), reprinted in 14 IRAN-U.S. C.T.R. 111, 128 (1987) (portion of claim dismissed on grounds that claimant had not informed respondent that it intended to treat failure to extend a letter of credit as a breach of the contract); John Carl Warnecke and Associates and Bank Mellat, Award No. 72-124-3, p. 11 (Sept. 2,1983), reprinted in 3 IRAN-U.S. C.T.R. 256, 261 (1983) (respondent'sallegation of 1975 breach, raised for first time in 1983, rejected on grounds of lack of contemporaneous objection); Aeronutronic Overseas Services, Inc. and Government of the Islamic Republic of Iran, et al.,Award No. 238-158-1, para. 45 (June 20, 1986), reprinted in 11 IRAN-U.S. C.T.R. 223, 235-236 (1986) (allegation of 1976 breach, raised for first time in 1981, rejected for lack of contemporaneous objection).
84Dissenting Opinion of Judge Holtzmann with Respect to Re-Engineering and Delay Claims in Aeronutronic Overseas Services, Inc. and Government of the Islamic Republic of Iran, Award 238-158-1, p. 5 (June 20, 1986), reprinted in 11 IRAN-U.S. C.T.R. 250, 253 (1986).