Arbitrators: Gaetano Arangio-Ruiz (Chairman), Mohsen Aghahosseini (concurring), Richard C. Allison (concurring and dissenting)
Parties: Claimant: Abrahim Rahman Golshani; Respondent: The Government of The Islamic Republic of Iran
prima facie case
forgery/authenticity of documents
burden of proof
estoppel and admission
The Claimant, a dual national, claimed approximately US$ 1.7 billion for the expropriation of his interests in a large Iranian development company and other related entities. His interests in these properties were based upon a deed of conveyance. The deed was allegedly executed on 15 August 1978, which was during the Tribunals jurisdictional period, by himself and his relative, Mr. Rahman Golzar Shabestari, who was an Iranian national and Managing Director of the development company. In support of his Claims, the Claimant produced the original of the deed, as well as providing affidavits from himself and Mr. Golzar. The Respondent challenged the authenticity of this deed.
26. "In November 1982 TRC started proceedings in the French civil courts against, inter alia, the Claimant and Mr. Golzar to obtain the nullification of a sale to the Claimant by Mr. Golzar, acting on behalf of TRC, of an apartment owned by the Company. The Deed, as well as another document that forms part of the record in the present Case, namely the minutes of the Shareholders' Meeting of TRC of 13 November 1979, were also at issue in the Paris Litigation. The Claimant maintains that in the Paris Litigation, 'the Respondent [took] positions that directly contradict the positions that it has taken in this proceeding.' Specifically, the Claimant contends that in the Paris Litigation the Respondent denied the existence of the minutes of the Meeting of 13 November 1979, whereas they are now relied upon by that same Party in support of its allegation of forgery and that the Respondent 'expressly asserted [in the Paris Litigation] ... that the Deed ... is authentic, valid and binding, operating under Iranian law to accomplish the objective desired by Mr. Golzar and the Claimant.' The Claimant concludes that, in view of these statements, the Respondent should be estopped or precluded from arguing in this Case that the Deed is forged.
27. "According to the Respondent and its expert, Professor Derek Bowett, no estoppel could have arisen because certain of the conditions thereto have not been met. First, the Respondent maintains that, for the doctrine of estoppel to be applicable, there must be a clear and unambiguous statement by the party sought to be bound. The Respondent disputes, however, that it ever stated clearly and unambiguously during the Paris Litigation that the Deed was valid. Second, the Respondent argues that a State Party can only be bound by its own statements or those made by persons or institutions 425 whose conduct is attributable to the State. Whereas the Claimant emphasizes that TRC is a controlled entity, the Respondent is of the opinion that this fact alone does not justify attributing to the Government of Iran the statements made by TRC's lawyers in the course of the Paris Litigation. The Respondent also asserts that, as a final element of the doctrine of estoppel, there must be 'a change in the positions of one or both Parties, as result of reliance on the statement alleged to create an estoppel, resulting in an advantage to the Party making the statement or the detriment of the Party relying on it.' The Respondent contends that the Claimant did not change its position in the Paris Litigation in reliance upon TRC's reference to the Deed. This contention, in turn, is disputed by the Claimant.
28. "Furthermore, the Respondent, relying on an affidavit by TRC's French attorney in the Paris Litigation, argues that it was not TRC, but the Claimant's attorney who first invoked the Deed in the Paris Litigation by submitting a translated French copy thereof to the Cour d'Appel of Paris. TRC's French attorney testified that it was only when he noted that the Deed contradicted the Claimant's position that he decided to make reference thereto in his pleadings.
29. "Apart from estoppel, the Claimant also argues that 'the Respondent's assertion of contrary positions in different proceedings may be viewed as an admission against interest that irreparably damages its credibility on the forgery issue.' The Respondent acknowledges that a statement lacking the requirements of estoppel can be regarded as an admission. It contends, however, that, although such an admission can be treated as a weakness in a party's position, it cannot bar that party from declaring the truth. Nevertheless, the Respondent maintains that it cannot be held to have admitted anything for the same reasons that lead it to conclude that no estoppel arises in this Case: the statements made during the Paris Litigation regarding the Deed are not clear and unambiguous and they cannot be attributed to the Government of Iran.
30. "Finally, the Claimant contends that both TRC's statements in the Paris Litigation and the French Courts' conclusions regarding the validity of the transfer incorporated in the Deed, which were not objected to by TRC, if not sufficient to estop or constitute an admission against the Respondent, nevertheless corroborate the Deed's authenticity."
31. "To assess what conclusions, if any, can be drawn for this Case from TRC's statements made during the Paris Litigation, the Tribunal must first view those statements in the context in which they were made.
42. "The Respondent on 16 May 1988 alleged for the first time before this 428 Tribunal that the Deed was forged. The Tribunal notes that this date precedes the date on which the statements referred to in paragraph 39, supra, were made. Consequently, when TRC made those statements, the Claimant was already aware that the Respondent contended before the Tribunal that the Deed was a forgery. The fact that such was the case has a bearing on whether the Respondent should be estopped from alleging that the Deed is forged.
43. "Furthermore, the question arises to what extent TRC's statements in the Paris Litigation can be attributed to the Government of Iran, the Respondent in this Case. Although it has been decided previously by the Tribunal that TRC is an 'entity controlled by the Government of Iran' as provided for in Article VII, Paragraph 3 of the Claims Settlement Declaration, [footnote omitted] it is clear that, under the internal laws of Iran, the Company is not Part of the structure of the State. This being the case, the Tribunal is reluctant to consider the statements made by TRC as those of the Government of Iran in the absence of additional circumstances justifying such attribution.
44. "In this respect, it is significant whether the Respondent, at the time it first alleged that the Deed was forged or later, was aware of and acquiesced in the statements contained in TRC's Brief submitted to the Cour de Cassation. Because the Respondent initially raised its forgery allegation in its letter dated 16 May 1988 and because TRC's Brief submitted to the Cour de Cassation was filed on or about 4 August 1988, it is unlikely that the Respondent was aware of the statements TRC was going to make at the time the Respondent first contended before the Tribunal that the Deed was not an authentic document. [footnote omitted] Although the reference by TRC to the declaration made by Mr. Golzar before the Tribunal shows that the Company had access to at least Part of the file in the Case at hand, this, by itself, does not warrant the conclusion that the Respondent was aware of and acquiesced in the statements regarding the Deed made by TRC in the course of the Paris Litigation.
45. "In view of the considerations expressed in paragraphs 42, 43 and 44, supra, the Tribunal believes that there is insufficient Basis to hold that the Respondent is estopped from alleging that the Deed is a forgery, or has admitted that the document is genuine.
46. "The Claimant also argues that TRC's statements made during the Paris Litigation tend to corroborate the Deed's authenticity. [footnote omitted] To the extent that that is correct, the Tribunal shall take account thereof when assessing the evidence presented by the Parties regarding the authenticity of the Deed."429
47. "The Claimant acknowledges that he has the initial burden of proving prima facie that the Deed is authentic. Once this is accomplished, according to the Claimant, the burden of proving that the Deed is a forgery shifts to the Respondent.
48. "Regarding the burden of proof, the Respondent relies on a legal opinion by Professor Brigitte Stern of the University of Paris X. According to Professor Stern, the general rule regarding the burden of proof in international law is embodied in the maxim: actori incumbit probatio. She is of the opinion that this principle implies that a respondent does not assume the burden of proof unless that party 'allege[s] other facts in support of its defence.' She maintains that the Respondent in this Case does not present such other facts but merely 'denies the value of the evidence adduced by the [C]laimant.' Professor Stern also recognizes, however, that there are a number of exceptions to the general rule, the most significant for our purposes being the presentation of prima facie evidence by the claimant, which shifts the burden of proof to the respondent.
49. "The Tribunal believes that the analysis of the distribution of the burden of proof in this Case should be centered around Article 24, paragraph 1 of the Tribunal Rules which states that '[e]ach party shall have the burden of proving the facts relied on to support his claim or defence.' It was the Respondent who, at one point during the proceedings in this Case, raised the defence that the Deed is a forgery. Specifically, the Respondent has contended that the Deed, dated 15 August 1978, was in fact fabricated in 1982. Having made that factual allegation, the Respondent has the burden of proving it. However, the Tribunal need only concern itself with the question whether the Respondent has met that burden if the Claimant has submitted a document inspiring a minimally sufficient degree of confidence in its authenticity. It is therefore up to the Claimant first to demonstrate prima facie that the Deed is authentic.
61. "Several of the Deed's characteristics support the position that the Deed is prima facie authentic. It is written upon Government issued paper (footnote omitted) the vintage of which, as shown by the Imperial emblem and the watermark, is consistent with the stated date of registration. It has been signed by the two transacting Parties and it bears the apparent signatures of the Notary and his assistant. It also carries what appears to be a notarial seal.
68. "The Deed itself, however, refers to a second document that is alleged to contain additional information regarding the transaction. More specifically, the Deed states the following:431
'Because there is no need to provide the particulars of each property conveyed in this document due to the large number of properties involved, and because on the other hand the transacting Parties have already drawn up between themselves a procès verbal setting forth the details in great specificity and exactness, the said procès verbal will thus be relied upon by both Parties, as well as by the State and national authorities and the Corporate Registration Bureau, to be reflected in the record; and the present Deed of Conveyance, as will be mentioned below, is being drawn up and registered in this Office in order to provide further assurances, and it is definite, final and binding upon both Parties.'
69. "The above implies that this second document (the 'Procès-Verbal') contains, at a minimum, the exact specifications of the properties referred to in the Deed and, perhaps, also other essential details regarding the transaction. It is evident, in the Tribunals opinion, that, absent such further specifications, the Deed could not be regarded prima facie as a genuine notarial instrument. This is so because, without any such additional descriptions, it would be impossible to identify exactly what the Claimant is supposed to have acquired. For the same reason, it would be impossible to record the transfer in the appropriate governmental agencies with a view to perfecting the transaction. [footnote omitted] The existence of the Procès Verbal, which is alleged to contain such further specifications, therefore is pivotal in the Tribunals determination whether the Deed is an authentic notarial instrument.
70. "A question that normally would need to be addressed first in this context is whether it is possible under Iranian law for the specifications of the real estate allegedly transferred to be contained in a document separate from the Deed. The Tribunal, however, has not been briefed sufficiently on this issue by both Parties and, therefore, cannot make any assumptions on this point.
71. "The Procès-Verbal was not submitted into evidence by the Claimant. Furthermore, when questioned about it at the Hearing, the Claimant was unable to recall its existence. Although realizing that businessmen often are not greatly concerned with the legal formalities affecting their commercial dealings, the Tribunal finds the Claimant's complete failure to recall such a crucial document quite amazing. In the light of the anomalies affecting and the matters omitted from the Deed, this fact weighs heavily against finding the Deed to be an official document entitled to a presumption of authenticity."432
76. "To corroborate the Deed's authenticity, the Claimant relies on a number of his own affidavits and several others signed by Mr. Golzar. (....)"
121. "In sum, the Tribunal, having been unable to conclude on the basis of the Deed alone that it is an official document entitled to a presumption of authenticity, has considered the Claimant's corroborating evidence and found many disturbing inconsistencies."