1 Foreign Relations Authorization Act, Pub. L. No. 99-93, tit. V, 99 Stat. 437 (1985) (50 U.S.C. §1701 note) (1994)) [hereinafter Iran Claims Act].

2 Settlement Agreement in Claims of Less than $250,000, Case No. 86 and Case No. B38, AWD 483, 25 Iran- U.S. CI. Trib. Rep. 327 (1990 II).

3 “Small claims” are claims that have a face amount of less than $250,000.

4 Iran Claims Act, supra note 1, §501 (a). The Declarations of the Government of the Democratic and Popular Republic of Algeria [hereinafter Algiers Accords] consist of two international agreements that led to settlement of the Iran hostage crisis and established the Iran-United States Claims Tribunal [hereinafter Tribunal]. The Declaration of the Government of the Democratic and Popular Republic of Algeria, Jan. 19, 1981, reprinted in 75 AJIL 418 (1981), 20 ILM 224 (1981), 1 Iran-U.S. CI. Trib. Rep. 3 (1981-82) [hereinafter General Declaration] , set forth the terms of release for the hostages. The Declaration of the Government of the Democratic and Popular Republic of Algeria concerning the Settlement of Claims by the Government of the United States of America and the Government of the Islamic Republic of Iran, Jan. 19, 1981, reprinted in 75 AJIL 422, 20 ILM 230, 1 Iran-U.S. CI. Trib. Rep. 9 [hereinafter Claims Settlement Declaration], established the Tribunal to decide the claims of U.S. and Iranian nationals, as well as the contractual claims of the two Governments. For analysis of the Tribunal’s jurisprudence, see Aldrich, George H., The Jurisprudence of The Iran–United States Claims Tribunal (1996)CrossRefGoogle Scholar; Brower, Charles N., The Iran-United States Claims Tribunal, 224 Recueil des Cours 123 (1990 V)CrossRefGoogle Scholar; Wayne, Mapp, The Iran-United States Claims Tribunal: the First Ten Years, 1981-1991 (1993)Google Scholar; Westberg, John A., International Transactions and Claims Involving Government Parties: Case Law of The Iran-United States Claims Tribunal (1991)Google Scholar.

5 Lump sum settlement, supra note 2, Art. III(l). Article IX(ii) of the Settlement Agreement permitted the FCSC (for a period of up to three years) to address requests for information to Iran, to assist the Commission in its process of deciding claims. The Commission did, indeed, make such requests. See 1992 FCSC Ann. Rep. 10; 1993 FCSC Ann. Rep. 9.

6 Lump sum settlement, supra note 2, Art. III(l). The U.S. government claim was identified in the lump sum settlement by its Tribunal case number, B38.

7 The private claimants were entitled to share in only about $50 million of this amount. The United States claimed the remaining amount as Repayment for the economic development loans.

8 Claims Settlement Declaration, supra note 4, Art. II (1). The lump sum settlement did not directly encompass the terms of the Algiers Accords, but it did require the Commission to apply the precedents of die Tribunal. Lump sum settlement, supra note 2, Art. III (v). The Tribunal, in turn, is charged with interpreting and applying die terms of the Algiers Accords. Claims Settlement Declaration, Art. VI (4). In addition, the Iran Claims Act, supra note 1, specifically directed die Commission to apply die relevant provisions of the Algiers Accords. For the total claims before the Commission in the Iran program, see 1991 FCSC Ann. Rep. 8; 1992 FCSC Ann. Rep. 8-9; 1995 FCSC Ann. Rep. 7.

9 Lump sum settlement, supra note 2, Art. 1(A). The Office of the Legal Adviser of the Department of State estimated that die lump sum settlement covered 2,361 claims that were filed at the Tribunal, as well as 10 claims that were dismissed by the Tribunal for lack of jurisdiction, 326 claims that were filed with the Tribunal but later voluntarily withdrawn and 415 claims that were not timely filed with the Tribunal. Marian Nash (Leich), Contemporary Practice of the United States relating to International Law, 84 AJIL 885, 894 (1990). The Commission consistently ruled that it had no jurisdiction to award principal amounts in excess of $250,000. See Darioush, Diana & Daniel Elghanayan, FCSC Decision No. [hereinafter Dec. No.] IR-1083 (1993); Angel Murad, Dec. No. IR-2226 (1994).

10 1995 FCSC Ann. Rep. 7. As will be discussed in text at and notes 203-09 infra, the aggregate of awards (some $86 million) exceeded that part of the lump sum allocable to the small claimants (approximately $57 million, the original $50 million, plus $7 million in accrued interest on that amount). Interest payments were made on a pro rata basis, with each claimant receiving about 34.96% of interest due. 1995 FCSC Ann. Rep. at 7-8.

11 William Ray Hollyfield, Dec. No. IR-0255 (1991).

12 Hollyfield v. Iran, AWD 446-10087-2, 23 Iran-U.S. CI. Trib. Rep. 276 (1989 III). For a discussion of what constitutes an entity controlled by Iran within the meaning of Article VII (3) of the Claims Settlement Declaration, see text at and notes 116-28 infra.

13 The lump sum settlement, supra note 2, Art. III(v), requires the Commission to “apply Tribunal precedent concerning both jurisdiction and merits.” The FCSC noted that the Hollyfield claim was “unusual” inasmuch as the Commission “reconsider [ed] a claim that had previously been dismissed by the Tribunal for lack of jurisdiction over the respondent.” 1991 FCSC Ann. Rep. 10.

14 Hollyfield, supra note 11, at 6.

15 Id. at 6-7.

16 The Tribunal noted that the lump sum settlement also terminated claims that were not pending before the Tribunal. The Tribunal recognized, however, that “nothing prevents the two Governments from including within their Settlement Agreement the settlement of other claims or disputes.” Award on Agreed Terms, AWD 483, para. 7, 25 Iran-U.S. CI. Trib. Rep. 327, 330 (1990 II).

17 See Hollyfield, supra note 11.

18 But cf. Rogers Eng’g, Dec. No. IR-0408 (1992). In this case, the Commission rejected a breach-of-contract claim brought by a U.S. company against a private Iranian company. The Commission held that, since the company was not controlled by Iran, the Government could not be held liable for the breach. This result seems contrary to the holding in Hollyfield, as it appears that the claimant would have had access to an Iranian forum and that the Iranian company would have been subject to that forum’s jurisdiction. The Rogers Engineering claim thus met all the requirements of the Hollyfield test. While there was no indication from the decision that Rogers Engineering had argued that its claim was covered by the Hollyfield test, the failure of the Commission to apply its own precedent in this case is inexplicable, and may have been a foreshadowing of the Commission’s modification of the Hollyfield precedent in the Richard B. Page decision. See text at and notes 21-22 infra.

19 For the way lump sum settlements can be used to settle private debt claims, see 1 Lillich, Richard B. & Weston, Burns H., International Claims: Their Settlement by Lump Sum Agreements 199-200 (1975)Google Scholar.

20 On the FCSC’s subject matter limitations, see text at and notes 140-42 infra. On eligible claimants under the lump sum settlement, see text at and notes 38-60 infra.

The Commission asserted jurisdiction over, and awarded damages arising from, incidents occurring after the Algiers Accords of January 19, 1981. See, e.g., Jefferson County Welfare Dep’t, Dec. No. IR-0722 (1992) (allowing recovery for public expenditures to support disabled Iranian child abandoned in the United States, even though many of the charges were incurred after 1981). But see University of Fla., Dec. No. IR-0237 (1991); Gonzales & Gonzales Ins. Brokers, Dec. No. IR-0740 (1993) (rejecting such claims). Note that such claims, accruing after January 1981, would not have been cognizable before the Tribunal, although (in a handful of cases) the Tribunal did allow damages for some contractual breaches occurring after that date. See Behring Int’l Inc. v. Islamic Republic of Iranian Air Force, AWD ITM/ITL 52-382-3, 8 Iran-U.S. CI. Trib. Rep. 238 (1985 I); Aeronautics Overseas Servs., Inc. v. Islamic Republic of Iran, AWD 238-158-1, 11 Iran-U.S. CI. Trib. Rep. 226 (1986 II).

21 Richard B. Page, Dec. No. IR-1473, at 5 (1993).

22 Rockwell-Collins Int’l Inc., Dec. No. IR-0937, at 11 (1994).

23 The Iran Claims Act, supra note 1, §501 (a), and the lump sum settlement, supra note 2, Art. III(v), define the law the Commission is to apply.

24 Lump sum settlement, supra note 2, Art. III(v).

25 Claims Settlement Declaration, supra note 4, Art. V.

26 Iran Claims Act, supra note 1. See also text at and notes 1-2 supra.

27 See, e.g., Lydia Czomba, Dec. No. IR-0006 (1991); John J. Brunego, Dec. No. IR-0007 (1991); William E. Kidwell, Dec. No. IR-0008 (1991).

28 Panelfold, Inc., Dec. No. IR-0172 (1991).

29 See, e.g., Les-Tex Indus., Dec. No. IR-0159 (1991) (citing the 1980 UN Convention on Contracts for the International Sale of Goods).

30 See, e.g., Anthony J. Maloney, Dec. No. IR-0232 (1991).

31 In no case did the Commission expressly refer to principles of justice or equity.

32 See, e.g., Dennis M. Hogan, Dec. No. IR-0162 (1991) (claimant was found to have been wrongfully expelled from Iran even though he could not point to an identifiable agent of the Government of Iran who ordered him to leave the country as required by Tribunal precedent). For further analysis of this case, see text at and notes 107-10 infra. See also Richard L. Chapel, Dec. No. IR-0103 (1991) (claimant entitled to back wages and benefits even though his claim was time-barred under Tribunal precedent). For further analysis of this case, see text at and notes 178-82 infra.

33 There may have been other cases where these principles were applied silently. See, e.g., Key Bank, N.A., Dec. No. IR-0004 (1991). While this case did not seem to be inconsistent with any Tribunal precedent, the Commission failed to cite Tribunal precedent in support of its conclusion that an Iranian-controlled entity cannot escape payment on a check by merely claiming that the freezing of Iranian assets prevented payment from the entity’s U.S. bank account.

34 The two decisions that appear to have deviated from Tribunal precedent were not followed. On the Commission’s refusal to follow the Hogan decision, see text at and notes 113-15 infra.

35 45 C.F.R. §531.6(d) (1996).

36 Richard C. Willson, Jr., Dec. No. IR-2171, at 15 (1994). See also Walter J. Johnson, Inc., Dec. No. IR- 0614 (1994).

37 Willson, supra note 36, at 15.

38 Lump sum settlement, supra note 2, Art. 1(A).

39 Claims Settlement Declaration, supra note 4, Art. VII(l).

40 The Commission generally limited its review of the nationality question to situations where the claimant had submitted no evidence of U.S. nationality. See, e.g., Eau Claire Anesthesiologists Inc., Dec. No. IR-0091(1991) (claim denied after claimant corporation failed to submit evidence of its shareholders’ nationality); William Benner, Dec. No. IR-0139 (1991) (property claim that belonged to claimant’s wife was denied when she failed to establish that she was a U.S. citizen at the time of the loss).

41 United Tech., Inc., Dec. No. IR-0486 (1992). The claimant was entitled to recover only 98.1% of its claim since the remainder was owned by non-U.S. citizens. See also Campbell F. Logan Family Trust, Dec. No. IR- 0598 (1992) (breach of contract by Iran with a Venezuelan company was compensable since the company was wholly owned by a U.S. trust).

42 Marie L. Polak, Dec. No. IR-0563 (1992). The claimant was entitled to only 40% of the outstanding debt since she owned only 40% of the partnership.

43 Id. See also Fauver, Scribner K., Note, Partnership Claims Before the Iran-United States Claims Tribunal, 27 Va. J. Int’l L. 307 (1987)Google Scholar.

44 Virgil P. McConnell, Dec. No. IR-0471 (1992). The U.S. national was entitled to one-half of the expropriated account.

45 Id.

46 See Islamic Republic of Iran and United States of America, Dec. No. 32-A18-FT, 5 Iran-U.S. CI. Trib. Rep. 251 (1984 I); Syrus Rayhan, Dec. No. IR-0475 (1992).

47 See 1991 FCSC Ann. Rep. 12; 1992 FCSC Ann. Rep. 9. The Commission issued an award to a dual national in Rayhan, supra note 46, after finding that the claimant had dominant and effective U.S. nationality. The Commission, however, did not list the criteria necessary to establish dominant and effective nationality. It merely noted that the claimant had expressed a long-standing intention to remain in the United States and had established a medical practice there. The traditional international law test measuring dominant and effective nationality can be found in the Nottebohm case (Second Phase) (Liech. v. Guat.), 1955 ICJ Rep. 4 (Apr. 6).

48 The literature on the Tribunal’s “dominant and effective nationality” test, derived from its decision in the A18 case, 5 Iran-U.S. CI. Trib. Rep. 252 (1984 I), is vast. For a sampling, see Bederman, David J., Nationality of Individual Claimants before the Iran-United States Claims Tribunal, 42 Int’l & Comp. L.Q. 119, 124–35 (1993)Google Scholar.

49 A18 Decision, 5 Iran-U.S. CI. Trib. Rep. at 265.

50 See, e.g., Darioush & Elghanayan, supra note 9.

51 See Nouriel, Samuel, Ouriel & Emanuel Aryeh, Dec. No. IR-2365 (1994); Murad, supra note 9; Robert V. & Parivash Russell, Dec. No. IR-1834 (1994).

52 See Nouriel & Aryeh, supra note 51. Bui see Vernon & Mary Gerling, Dec. No. IR-0859 (1992) (claim denied owing to lack of evidence of beneficial ownership). See further David J. Bederman, Beneficial Ownership of International Claims, 38 Int’l & Comp. L.Q. 935 (1989).

53 A/18 Decision, 5 Iran-U.S. CI. Trib. Rep. at 265-66.

54 AWD 544-298-2 (Iran-U.S. CI. Trib. Jan. 2, 1993). See also Rouhollah Karubian v. Iran, AWD 569-419-2 (Iran-U.S. CI. Trib. Mar. 6, 1996).

55 For more on Saghi and the Tribunal’s caveat jurisprudence, see David J. Bederman, Saghi v. Islamic Republic of Iran, 87 AJIL 447 (1993).

56 See, e.g., Gerling, supra note 52; see also 1993 FCSC Ann. Rep. 10-11.

57 See, e.g., Russell, supra note 51.

58 Claims Settlement Declaration, supra note 4, Art. VII(2).

59 Rayhan, supra note 46.

60 According to Tribunal and Commission precedent, a claim for an unpaid debt arises when the claimant demands payment of the debt before the deadline of January 19, 1981. See text at and notes 66-68 infra. In the Rayhan case, supra note 46, the claimant’s first demand for payment occurred before he became a U.S. citizen. He also made a demand for payment after he acquired U.S. citizenship. The Commission chose to ignore the first demand and thus was able to maintain the fiction that the claim was continuously owned by a U.S. citizen. This was consistent with earlier FCSC precedent, see Jeffrey Brown, J., Note, The Jurisprudence of the Foreign Claims Settlement Commission: Vietnam Claims, 27 Va. J. Int’l L. 99, 111–13 (1986)Google Scholar.

61 Claims Settlement Declaration, supra note 4, Art. 11(1).

62 The lump sum settlement did allow claimants to recover in certain circumstances even if Iran was not shown to be responsible under Tribunal precedent. See text at and notes 11-22 supra.

63 See, e.g., Frank Blake Millett, Jr., Dec. No. IR-0317 (1992). In this case, the Commission found that a uranium exploration company was nationalized by the central Government when the Iranian Parliament promulgated the Law on Protection and Development of Iranian Industries (No. 7/226 of July 1979), which specifically nationalized “industries producing metals with considerable use in industry” and “major industries and mines.” Id. at 8.

64 See, e.g., Casa Nubla, Dec. No. IR-0102 (1991); Robert Sluga, Dec. No. IR-0161 (1991); Millett, supra note 63. The Commission came to this conclusion after noting that Article 44 of the Iranian Constitution includes banking as part of the state sector of the economy. In addition, the Law of Nationalization of Banks of June 7, 1979, specifically nationalized all the banks in Iran.

65 Casa Nubla, supra note 64. The Commission also indicated that Iran could be held responsible for a claimant’s loss arising from the devaluation of the Iranian currency, the rial. This claim was only valid, however, if the claimant could show that the bank had refused to allow him to withdraw his funds when the rial was at a substantially higher value. Earl J. Brown, Dec. No. IR-0422 (1992) (devaluation claim denied since the claimant had not submitted sufficient evidence that the Iranian bank had delayed the withdrawal of his funds). See also Foremost Tehran, Inc. v. Islamic Republic of Iran, AWD 220-37/231-1, 10 Iran-U.S. CI. Trib. Rep. 228 (1986 I).

66 See, e.g., Casa Nubla, supra note 64; Sluga, supra note 64. An injury occurs when the claimant makes a demand for his money that is rejected by the nationalized bank. Computer Sci. Corp. v. Islamic Republic of Iran, AWD 221-65-1, 10 Iran-U.S. CI. Trib. Rep. 269 (1986 I), cited in Casa Nubla, supra. If the claimant made a demand for a certificate of deposit or other financial instrument before that instrument had matured, the demand was not valid and the claim was denied. McConnell, supra note 44. The deadline of January 19, 1981, for the demand was necessary to ensure that the claim was outstanding on the effective date of the Algiers Accords. Koehler v. Islamic Republic of Iran, AWD 223-11713-1, 10 Iran-U.S. CI. Trib. Rep. 333 (1986 I), cited in Sluga, supra. But see note 68 infra.

67 Allen Norbert Croone & Eleanor G. Croone, Dec. No. IR-0239 (1991) (claimant’s attempt to cash a check at the Bahrain branch of his Iranian bank in the amount of his balance constituted a sufficient demand).

68 Sluga, supra note 64. In one particular case, indicating a possible reversal in FCSC jurisprudence, it was ruled that an account held by a U.S. citizen still in Iran as of the date of the lump sum settlement (June 22, 1990) was transferred to Iran under that agreement. See Medical Planning Assocs., Dec. No. IR-0989 (1994) (citing Article VII of the lump sum settlement, .supra note 2, which provides that “all of the Claimants’ tangible and intangible assets, rights, properties and real estate, of any kind, located in the Islamic Republic of Iran, . . . shall be quitclaimed and transferred unconditionally . . . to the Islamic Republic of Iran”). Thus, even if no demand had been made to repatriate an account prior to the Algiers Accords (in 1981), it could still be the subject of an FCSC award. Cf. Tamara Marandi, Dec. No. IR-0964 (1994) (holding that right to a pension from the National Iranian Oil Co. had been transferred to Iran under Article VII of the Settlement Agreement). See 1994 FCSC Ann. Rep. 9.

69 Besser Co., Dec. No. IR-0410 (1992). But see Ulysses S. Allen, Dec. No. IR-2040 (1994) (claimant must show that Iranian Government’s currency regulations violated international law); James Besharty, Dec. No. IR-1148 (1994) (Iran not responsible for exchange rate fluctuations).

70 Besser, supra note 69 (citing Harza Eng’g Co. v. Islamic Republic of Iran, AWD 19-98-2, 1 Iran-U.S. CI. Trib. Rep. 499 (1982)). The claimant in Besser could not argue that it was entitled to an award simply because the other party had breached die contract since die other party was not an entity controlled by Iran. For more on die legal effect of Iranian foreign exchange controls, particularly under the 1945 Articles of Agreement of the International Monetary Fund, see Brower, supra note 4, at 256-63.

71 See Jefferson County Welfare Dep’t, supra note 20.

72 See Victor J. & Emile J. Jemal, Estate of Arpen Jamal & Estate of Emma J. Abrahamayan, Dec. No. IR- 1485 (1993); Murad, supra note 9.

73 Claims Settlement Declaration, supra note 4, Art. VII (3).

74 Gregory R. Vaughn, Dec. No. IR-0001, at 6-7 (1991); Seymour J. Honeycutt, Dec. No. IR-0052, at 7-9 (1991). The Commission adopted Tribunal precedent requiring that the claimant be able to point to an identifiable agent of the revolutionary Government to recover under either die wrongful expulsion or uncompensated expropriation theories. See Yeager v. Islamic Republic of Iran, AWD 324-10199-1, 17 Iran-U.S. CI. Trib. Rep. 92 (1987 IV). See oho Short v. Islamic Republic of Iran, AWD 312-11135-3, 16 Iran-U.S. CI. Trib. Rep. 76 (1987 III). The Commission, on at least one occasion, softened this requirement to identify an agent of the Iranian Government. See Hogan, supra note 32 (group of 20 to 50 armed men deemed to be “revolutionaries” whose wrongful actions were directly attributable to Iran). On earlier FCSC precedent on takings of property, see Brown, supra note 60, at 105-10.

75 Vaughn, supra note 74; Robert L. Hamilton, Dec. No. IR-0487 (1992).

76 See, e.g., Seba A. Gaston, Dec. No. IR-0234 (1991) (property destroyed when Revolutionary Guards stormed and burned to the ground a warehouse deemed to be the subject of an uncompensated expropriation); William L. Spillman, Dec. No. IR-0155 (1991) (rifle and shotgun damaged by Iranian customs agents deemed to have been confiscated).

77 See, e.g., Robert Charles Robinson, Dec. No. IR-0185 (1991) (claimant received an award after showing that a customs agent had confiscated four suits); Vaughn, supra note 74 (claimant entitled to an award after producing evidence that Revolutionary Guards had seized his tools); Upton Dells Gartrell, Dec. No, IR— 0229 (1991) (claimant compensated for lost personal property, including furniture, household appliances, silverware, crystal chandeliers, cosmetics and foodstuffs after submitting affidavits from witnesses who saw Revolutionary Guards confiscate the property). See also Robert C. Brown, Dec. No. IR-0181 (1991) (claimant entitled to an award because his landlord, who was also a captain in the police force, had evicted claimant and began to seize his property) ;James Ronald Husser, Dec. No. IR-0356 (1992) (claimant’s property expropriated when the local Komiteh affixed a seal on his house and transported his property to the Revolutionary Court’s headquarters).

78 See, e.g., Benner, supra note 40 (claimant taken by gunpoint from his apartment by members of the Komiteh and not allowed to return to retrieve his belongings); Hogan, supra note 32 (claimant prevented by Revolutionary Guards from entering his employer’s office to recover a calculator, a pen set, an appointment book and a pair of gold cufflinks); Darrell Edwin Lombard, Dec. No. IR-0183 (1991) (claimant prevented by Revolutionary Guards from entering his apartment); Anthony J. Maloney, Dec. No. IR-0232 (1991) (claimant prevented by Revolutionary Guards from entering his employer’s office to recover his personal belongings).

79 See Janet Barr, Estate of Larry Joe Barr, Deceased, Dec. No. IR-0220 (1991) (university officials entered claimant’s apartment and sold her personal property without her consent and without forwarding the proceeds to her).

80 See, e.g., John F. Magagna, Dec. No. IR-0086 (1991) (Ministry of Education official prevented shipper from moving claimant’s property); Carl Robert Cummings & Linda Sue Cummings, Dec. No. IR-0145 (1991) (Iranian customs officials refused to allow claimants to transport their car out of Iran).

81 Elizabeth R. Tuers, Dec. No. IR-0434 (1992). The property must be left with a person acting in his official capacity rather than with a friend who happens to be a government employee. Thus, Ms. Tuers was entitled to recover an amount equal to the value of property left with her supervisor, the chairman of the Department of Foreign Languages at an Iranian university, who accepted the property on the university’s behalf. She was not entitled, however, to be compensated for property left with fellow professors.

82 See Glen D. Bartholomew, Dec. No. IR-0249 (1991).

83 See, e.g., Kenneth L. Johnson, Jr., Dec. No. IR-0127 (1991); Estate of Stephenson R. Parker, Deceased, Dec. No. IR-0168 (1991). But see John R. Cumming, Dec. No. IR-0340 (1992) (five boxes left at the Army Post Office at the United States Embassy for shipment to the United States were subject to an uncompensated expropriation when the Embassy was taken over by Iranian revolutionaries). See also 1991 FCSC Ann. Rep. 9.

84 A predictable consequence of such “wrongful expulsion” is that the claimant will be unable to arrange for the disposition of his belongings and will consequently be deprived of them. Honeycutt, supra note 74.

85 Johnson, supra note 83; Parker, supra note 83; Page, supra note 21 (all citing Rankin v. Islamic Republic of Iran, AWD 326-10913-2, 17 Iran-U.S. CI. Trib. Rep. 135 (1987 IV)).

86 See, e.g., Johnson, supra note 83; Parker, supra note 83. For a critique of the Tribunal’s refusal to hold Iran responsible for the constructive expulsion of U.S. citizens, see Short v. Islamic Republic of Iran, AWD 312- 11135-3, 16 Iran-U.S. CI. Trib. Rep. 86 (1987 III) (Brower. J., dissenting). See also Note, Stale Responsibility for Constructive Wrongful Expulsion of Foreign Nationals, 11 Fordham Int’l L. J. 802 (1988)Google Scholar [hereinafter Fordham Note].

87 The Commission was generally adamant in holding that the claimant must be able to point to an identifiable agent of Iran. Thus, the fact that a claimant left the country after receiving threatening phone calls from “Revolutionaries” was not sufficient to hold the Iranian Government responsible for the threats. James R. Jordan, Dec. No. IR-0370 (1992). The Commission “recognized” that this requirement “place[s] a difficult burden on a claimant to establish that he or she has suffered a compensable loss.” Stewart I. Wilson, Dec. No. IR-0343, at 7 (1992). But cf Hogan, supra note 32 (Iran held responsible for threats by unidentified armed supporters of the revolution).

88 Honeycutt, supra note 74.

89 Id. The claimant was told to take an emergency leave out of the country by his Iranian-controlled employer. He managed to get a flight back but was never allowed to leave the airport. Mr. Honeycutt would not have received an award if he had never made it back to Iran. Several claimants had been advised by their Iranian-controlled employers to leave Iran temporarily in December 1978. They could not return, however, because of ongoing demonstrations and airline strikes. The Commission denied these claims on the grounds that Iran was not responsible for the transportation problems and that the claimants had not been “forced” to leave. See, e.g., Michael H. Barbick, Dec. No. IR-0031 (1991).

In the same vein, the FCSC ruled that Iran was not responsible for losses resulting from a claimant’s inability to return to Iran. As a matter of international law, the Commission ruled, Iran was under no obligation to permit a non-Iranian national to enter Iran. See Claude Dale Chavers, Dec. No. IR-1091 (1993); R. C. Rogers, Dec. No. IR-1067 (1993) (citing Goodwin-Gill, Guy S., International Law and the Movement of Persons Between States (1978)Google Scholar; Ian, Brownlie, Principles of Public International Law (3d ed. 1979)Google Scholar; Richard, Plender, International Migration Law (1988)Google Scholar).

90 See, e.g., Stanley N. Davis, Dec. No. IR-0002 (1991). In this case, Representatives of the Iranian Housing Authority, the claimant’s employer, “advised” Mr. Davis to leave Iran that same night. This warning occurred a few days after the U.S. Embassy was occupied by Iranian militants. See also Edward A. Rousseau, Dec. No. IR-0191 (1991) (Ministry of Education official directed claimant to leave as soon as possible after a member of the Komiteh (Revolutionary Guards) told Mr. Rousseau to leave the country “immediately”).

91 See, e.g., Andrew Cobbs, Dec. No. IR-0157 (1991) (claimant was ordered out of the country by Revolutionary Guards on only 24 hours’ notice); Victor H. Bolado, Dec. No. IR-0534 (1992) (claimant ordered to leave Iran within 48 hours by “Revolutionaries”).

92 Roberta Miller Deady, Dec. No. IR-0079, at 5 (1991).

93 Leo J. Bourne, Dec. No. IR-0245 (1991).

94 Id. at 9.

95 The Commission later backed off from its harsh holding in Bourne. In Alex Jenkins, Dec. No. IR-0392 (1992), the Commission determined that an Air Force sergeant was wrongfully expelled after he was taken hostage by “forces loyal to the Revolutionary Government.” Id. at 4. He was released into the custody of the United States Embassy a short time later but never allowed to return to his residence to recover his belongings. The Commission ruled that this subsequent evacuation from Iran was “directly attributable to actions of the Iranian Government taken solely because of his United States nationality.’’ Id. This decision directly contradicts the Bourne decision. See also Donald L. Carry & Patricia L. Carty, Dec. No. IR-0490 (1992) (claimant entitled to an award after he was arrested, released, and evacuated from Iran even though he had received no explicit order to leave the country); Marshall B. Johnson, Dec. No. IR-0523 (1992) (claimant asserted valid claim of wrongful expulsion after he left Iran the day following his detention by Revolutionary Guards, despite die lack of any order by an Iranian official that he leave).

96 Grady R. Poole, Dec. No. IR-0348 (1992).

97 Id. at 7. See also Jerry O. Bates, Dec. No. IR-0768 (1992); Gwenn Honnold, Dec. No. IR-0068 (1993); Russell, supra note 51.

98 United Tech., supra note 41.

99 Id. A skeleton crew remained in Iran until March 1979. The Commission determined that claimant did not have sufficient time to wind up its affairs despite the fact that the skeleton crew had spent three more months in Iran. The Commission further opined that it would not “exonerate die Government of Iran simply because [Iran] had failed to expel the claimant’s entire operation on its first attempt.” Id. at 10.

100 International Technical Prods. Corp. v. Islamic Republic of Iran, AWD 186-302-3, 9 Iran-U.S. CI. Trib. Rep. 10 (1985 II).

101 Id. at 18.

102 United Tech., supra note 41, at 9.

103 The company was entitled to reimbursement for the money it had paid to its employees to compensate them for the loss of their property. The claimant was also entitled to recover the amount it had to pay in termination benefits to those employees who had to be prematurely discharged as a result of its expulsion. It was also compensated for property it had to leave in Iran.

104 Most U.S. employers that would have benefited from this decision presumably had claims worth much more than the $250,000 limit.

105 United Tech., supra note 41, at 9 n.*.

106 The precedential value of the United Technologies decision will not be that important if future claims commissions interpret lump sum settlements to hold states responsible for the actions of their revolutionary supporters instead of limiting liability to acts carried out by identifiable agents of the government.

107 Hogan, supra note 32.

108 Id. at 6, 8.

109 See id. at 8. The Commission inferred that a group of men were acting on behalf of the revolutionary movement if they were armed. Robert M. Kaluza, Dec. No. IR-0433 (1992) (Iran held responsible for the acts of armed men, shouting pro-Khomeini slogans, who entered the claimant’s apartment and carried away his property).

110 Hogan, supra note 32, at 8.

111 See, e.g., Johnson, supra note 83; Parker, supra note 83. These two claimants left Iran around the same time as Mr. Hogan. They experienced anti-American hostility as well. While they had apparently not been directly threatened, the Commission acknowledged that they felt compelled to leave Iran. Nevertheless, the Commission denied both claims. Johnson was decided before Hogan, while Parker was decided after Hogan.

112 See, e.g., Yeager v. Islamic Republic of Iran, 17 Iran-U.S. CI. Trib. Rep. 92 (1987 IV); Rankin v. Islamic Republic of Iran, 17 Iran-U.S. CI- Trib. Rep. at 135; Short v. Islamic Republic of Iran, 16 Iran-U.S. CI. Trib. Rep. 76 (1987 III). Jack Rankin claimed he was compelled to leave Iran around the same time as Hogan (after the successful completion of the revolution). The Tribunal did not find that the wave of anti-Americanism rampant in Iran during this period forced Mr. Rankin to leave. Therefore, it held that he was not wrongfully expelled from Iran by acts attributable to Iran. Rankin, 17 Iran-U.S. CI. Trib. Rep. at 151, para. 38. Hogan is consistent, however, with Judge Brower’s dissent in Short. The facts in Hogan indicate that he was constructively expelled from Iran. According to Judge Brower, constructive expulsion occurred when the general and indirect acts of the revolution’s supporters forced a claimant to leave the country. Under this view, Iran was responsible for the constructive expulsion since its leaders made anti-American statements and did nothing to quell the actions of their adherents. Short, 16 Iran-U.S. CI. Trib. Rep. at 94-95, paras. 15-16 (Brower, J., dissenting). The decision in Hogan may even be consistent with a broad reading of the majority opinion in Short. The Tribunal in this case arguably adopted the theory that Iran could be held liable for the indirect, or de facto, expulsion of an alien when the claimant had no other choice than to leave and when the acts leading to his departure were attributable to the state. Short, 16 Iran-U.S. CI. Trib. Rep. at 83-84, paras. 29-30. The FCSC in Hogan clearly held Iran responsible for Hogan’s de facto expulsion.

113 The Commission reiterated its view that Iran could be held responsible for the expropriation of property by unidentified armed men in Kaluza, supra note 109, but die Kaluza decision appears to be an exception. The Commission failed to follow the enlightened view of state responsibility in, e.g., William K. Rickman & Mary E. Misner, Dec. No. IR-0446 (1992) (claimants were not wrongfully expelled despite die fact that they left after witnessing a pipe bomb being thrown into their neighbor’s apartment).

114 See also Howardine I. Smith, Dec. No. IR-0554, at 7 (1992) (death threats by unidentified persons do not constitute sufficient “evidence establishing that the claimant was forced by an individual or entity acting under the authority of the Government of Iran to leave the country”); Darlene Hines, Dec. No. IR-0606 (1992) (landlord who was allegedly involved with the “Revolutionary Regime” cannot be said to have acted under governmental authority when he refused to release claimant’s property to her agents).

115 See Draft articles on State responsibility, Art. 15(1), Report of the International Law Commission on the work of its forty-eighth session, UN GAOR, 51st Sess., Supp. No. 10, at 125, 129, UN Doc. A/51/10 (1996). This rule can be traced back to the decision in Bolivar Ry. Co. (Gr. Brit. v. Venez.), 9 R.I.AA. 445, 453 (1903) (“The nation is responsible for die obligations of a successful revolution from its beginning, because in theory, it Represented ab initio a changing national will, crystallizing in the finally successful revolt.”). Even if the acts are characterized as those of “mere” mobs, attribution for purposes of state responsibility will be made if die conduct can be traced to later, successful revolutionary force. See O’Connell, D. P., International Law 968 (2d ed. 1970)Google Scholar; Louis, Sohn & Richard, Baxter, Final Draft of a Convention on the International Responsibility of States for Injuries to Aliens, reprinted in Garcia-Amador, F. V., Sohn, Louis B. & Baxter, Richard R., Recent Codification of the Law of State Responsibility for Injuries to Aliens (1974)Google Scholar; Feller, A. H., The Mexican Claims Commissions 156-57, 163 (1935)Google Scholar.

For an argument in favor of holding Iran responsible for the actions of its revolutionaries, see Judge Brower’s dissent in Short, 16 Iran-U.S. CI. Trib. Rep. at 98-99.

116 The Claims Settlement Declaration provides that a national of the United States may file a claim only against “Iran” and not against private Iranian citizens or businesses. The term “Iran,” however, encompasses “the Government of Iran, any political subdivision of Iran, and any agency, instrumentality, or entity controlled by die Government of Iran or any political subdivision thereof.” Claims Settlement Declaration, supra note 4, Art. VII (3). Thus, die claimant was filing a claim against Iran when he alleged that a private entity, which was later nationalized, breached a contract or otherwise affected his property rights. See Frank Backer, Dec. No. IR-0013 (1991).

117 See, e.g., Rachel Faerber, Dec. No. IR-0048 (1991) (Ministry of Culture was an agency of Iran); Benner, supra note 40 (Imperial Iranian Air Force was a controlled entity of Iran). The contract claim did not need to accrue directly against the government ministry. Therefore, Iran was responsible for the breaches of a subsidiary of an agency of a government ministry. Richard A. Jay, Dec. No. IR-0045 (1991) (breach-of employment contract was attributable to Iran because the breaching party, Iran Aircraft Industries (L\CI), was a subsidiary of the Military Industrial Organization, which, in turn, was an agency of the Ministry of National Defense).

118 Richard Lippold, Dec. No. IR-0134 (1991) (Iran was responsible for breach of a services contract between a U.S. national and an entity within the Iranian Imperial Court that was owned by the Pahlavi Foundation, an organization created and controlled by the Shah, and the Iranian secret police, SAVAK). See also Wittenborn Art Books, Inc., Dec. No. IR-0023 (1991) (breach of contract attributable to Iran when Private Secretariat of Her Imperial Majesty, the Shahbanou of Iran, failed to pay invoices).

119 See, e.g., Economy Forms Corp. v. Islamic Republic of Iran, AWD 55-165-1, 3 Iran-U.S. CI. Trib. Rep. 42 (1983 II).

120 Theodore G. Robinson, Dec. No. IR-0213 (1991) (when personal services contract identifies breaching party as an imperial entity, FCSC will conclude that the entity is controlled by Iran).

121 Lippold, supra note 118, at 4 (“The fact that the [breaching party’s] address was listed as that of the former Imperial Government of Iran is a significant indicator in determining whether the [party] is a controlled entity.”).

122 Olaf & Clarice Mickelsen, Dec. No. IR-0192 (1991) (Institute of Nutrition Sciences and Food Technology was a controlled entity of Iran since correspondence from the institute was printed on stationery bearing the letterhead of the Ministry of Health and Welfare).

123 See, e.g., Backer, supra note 116 (claimant alleged Iran should be held responsible for his Iranian employer’s breach of contract). But see Hollyfield, supra note 11 (determining that the lump sum settlement allowed FCSC to adjudicate a claim against Iranian entities that had not been nationalized or controlled by Iran as long as that claim could have been brought in another forum). See further text at notes 21-22 supra.

124 Millett, supra note 63 (Article 44 of the Iranian Constitution considers banking and mineral resources to be part of the state sector of the economy).

125 Id. Two such laws are the Law on Protection and Development of Iranian Industries (which specifically nationalized industries producing metals) and the Law on Nationalization of Banks (which nationalized the entire banking industry).

126 Backer, supra note 116 (citing Foremost Tehran, Inc. v. Islamic Republic of Iran, 10 Iran-U.S. CI. Trib. Rep. 228 (1986 1)).

127 Id.

128 Id. Another way a claimant could establish that a private company had fallen under the control of the Government was by showing that a nationalized Iranian bank had reached a financial settlement with the U.S. Export-Import Bank concerning some of the debts owed by that company. Avionics Sys., Inc., Dec. No. IR- 0366 (1992); see also Robert S. Harris, Dec. No. IR-0367 (1992) (the fact that an Iranian bank settlement the debts of the company indicates that it was nationalized, which allowed the claimant stockholder to receive compensation for his expropriated stock). The FCSC viewed such an agreement as an “implicit admission” that the company was a controlled entity of Iran. Avionics Sys., supra, at 4. This admission was binding for both breach of contract, Avionics, and expropriated property claims, Harris.

129 Concrete Detailing Servs., Inc., Dec. No. IR-0576 (1992) (citing Shannon & Wilson, Inc. v. Atomic Energy Org. of Iran, AWD 207-217-2, 9 Iran-U.S. CI. Trib. Rep. 397 (1985 II); Sea-Land v. Islamic Republic of Iran, AWD 135-33-1, 6 Iran-U.S. CI. Trib. Rep. 149 (1984 II); Isaiah v. Bank Mellat, AWD 35-219-2, 2 Iran- U-.S. CI. Trib. Rep. 232 (1983 I)).

130 Id.

131 Id. See also Andrew Joseph Nemec, Jr., Dec. No. IR-0566 (1992) (claimant, who apparently was hired by a private company, was entitled to an award of back pay under the theory of quantum meruit since his work had benefited the Iranian Navy).

132 See, e.g., Vaughn, supra note 74; David M. Kelly, Dec. No. IR-0206 (1991). On the wrongful expulsion of a company, see United Tech., supra note 41, and text at and notes 98-106 supra.

133 See, e.g., Short v. Islamic Republic of Iran, 16 Iran-U.S. CI. Trib. Rep. 76 (1987 III); Rankin v. Islamic Republic oflran, 17 Iran-U.S. CI. Trib. Rep. 135 (1987 IV).

134 American employers doing business in Iran had their employees sign standard terminable-at-will contracts. The vast majority of these employees who came before the Commission worked for Bell Helicopter International, Inc. (BHI). The BHI standard contract provided that continued employment was “at die sole discretion of BHI” and that termination could occur “at any time by any party with or without cause.” Vaughn, supra note 74, at 4-5; Veto J. Marlette, Dec. No. IR-0193, at 4 (1991). Other employers’ contracts were also deemed terminable-at-will contracts by the Commission. Thus, employees whose contracts could be terminated at the employer’s “sole option” or “convenience” were denied awards. Brown, supra note 77; John H. Robertson, Dec. No. IR-0149 (1991). Also denied awards were employees who could be dismissed on die termination of their employer’s contract in Iran. Kelly, supra note 132; Jack M. Radford, Jr., Dec. No. IR-0116 (1991). Similarly, contracts that were “month to month” or “subject to . . . future contracts requirements for personnel” were deemed terminable at will, as were contracts that could be “lengthened or shortened as necessitated by the needs of the business.” See, respectively, Howard L. Cornn, Dec. No. IR-0300, at 4 (1991); Francis Carey Topita, Dec. No. IR-0303, at 4 (1991); Grover A. Lewis, Dec. No. IR-0337, at 4 (1992). The Commission noted that the denial of these “terminable-at-will” employees’ claims constituted the majority of those it disallowed. 1991 FCSC Ann. Rep. 9; 1994 FCSC Ann. Rep. 10.

135 Leach v. Islamic Republic of Iran, AWD 440-12183-1, 23 Iran-U.S. CI. Trib. Rep. 233 (1989 III) (claimant had no legal right to continued employment given the terms of the contract). See also Cobbs, supra note 91 (contract made no provision for any right to continued employment); Lee R. Behner, Dec. No. IR-0109 (1991) (claimant had no entitlement to any term of continued employment); Ernest J. Kesterson, Dec. No. IR-0209 (1991) (claimant cannot be said to have had a “property right” in a terminable-at-will contract).

136 Cobbs, supra note 91.

137 See, e.g., Yeager v. Islamic Republic of Iran, 17 Iran-U.S. CI. Trib. Rep. 92, 109-10, para. 60 (1987 IV); Vaughn, supra note 74. In a case involving a Grumman Aerospace Corp. employee, the Commission never even reviewed his contract to determine whether it was terminable at will. Instead, the FCSC noted that the employee’s termination notice stated that he was “departing from Iran as a result of job cancellation.” This was enough to deny the claimant an award under the theory that Iran could not be held liable for his employer’s cessation of activity in Iran. Gartrell, supra note 77, at 4.

138 This is the case even though Iran was responsible for the loss of any tangible property arising out of the wrongful expulsion. See text at and notes 74-115 supra.

139 See, e.g., Yeager, 17 Iran-U.S. CI. Trib. Rep. at 109-10, para. 60; Leach, 23 Iran-U.S. CI. Trib. Rep. at 237- 38, para. 19; Cobbs, supra note 91.

140 The employee would be compensated for any loss of personal property resulting from the wrongful expulsion. See, e.g., Davis, supra note 90; Deady, supra note 92.

141 Hogan, supra note 32 (property loss attributable to Iran even though claimant was unable to show that his loss was attributable to agents acting under the authority of the Iranian Government); Hollyfield, supra note 11 (claimant entitled to be compensated for a breach of contract despite the fact that the breaching party was not a controlled entity of Iran); Concrete Detailing, supra note 129 (claimant entitled to be compensated for a breach of contract by a private, noncontrolled company since Iran was a third-party beneficiary to the contract).

142 If the claimant could show that anti-American statements were made by government officials and were directed specifically at him, the Commission sometimes held Iran responsible for the claimant’s involuntary departure. See Poole, supra note 96.

143 Draft articles on State responsibility, [1975] 2 Y.B. Int’l L. Comm’n 59, 99-102, UN Doc. A/CN.4/ SER.A/1975/Add.l. See also Fordham Note, supra note 86.

144 Claims Settlement Declaration, supra note 4, Art. 11(1).

145 See, e.g., Vaughn, supra note 74 (uncompensated expropriation); Honeycutt, supra note 74 (wrongful expulsion) (both citing Yeager v. Islamic Republic of Iran, 17 Iran-U.S. CI. Trib. Rep. 92 (1987 IV)).

146 Harris, supra note 128.

147 See, e.g., Robinson, supra note 77 (customs agent confiscated four suits); Gartrell, supra note 77 (Revolutionary Guards confiscated household furniture and appliances).

148 Cummings, supra note 80 (expropriation occurred when customs agents refused to allow claimants’ car to be shipped out of the country).

149 Gaston, supra note 76 (expropriation occurred when property stored in a warehouse was destroyed by a fire set by Revolutionary Guards).

150 Lombard, supra note 78 (claimant prevented from removing his property from his apartment).

151 Casa Nulia, supra note 64.

152 See Rudleigh G. Coffman, Dec. No. IR-0156 (1991) (having established that he was entitled to a refund under Iranian law, claimant was awarded compensation for the expropriated amount of refund due him).

153 See, e.g., Behner, supra note 135 (claim for relocation expenses, lost tax advantages and health insurance denied); Estate of John D. Logan, Deceased, Dec. No. IR-0178 (1991) (claim for mental anguish and loss of tax advantages denied).

154 Mark A. Prince, Sr., Dec. No. IR-0208 (1991) (claim for physical and mental injuries denied). The Commission was specifically prohibited from hearing claims involving “injury to United States nationals” by the Algiers Accords. See General Declaration, supra note 4, para. 11; see also Grimm v. Islamic Republic of Iran, AWD 25-71-1, 2 Iran-U.S. CI. Trib. Rep. 78 (1984 I) (characterizing claim for personal injury as not “affecting property rights,” and thus denying jurisdiction). Punitive damages claims were barred since these damages are “usually only recoverable in tort claims” and thus do not arise from actions affecting property rights. Dow-Warner, Inc., Dec. No. IR-0501, at 6 (1992).

155 See, e.g., Behner, supra note 135; Kesterson, supra note 135. See also Cobbs, supra note 91 (citing Leach v. Islamic Republic of Iran, 23 Iran-U.S. CI. Trib. Rep. 233 (1989 III) (claimant enjoyed no legal right to continued employment given the terms of his contract)). On the Commission’s and Tribunal’s view of terminable-at-will contracts, see text at and notes 132–37 supra.

156 Cummings, supra note 80.

157 Husser, supra note 77.

158 Bourne, supra note 93.

159 Vaughn, supra note 74.

160 Gartrell, supra note 77.

161 Hogan, supra note 32.

162 Id.

163 Gartrell, supra note 77. Of course, it was difficult to put a value on such small items. In this case, the award for the cosmetics and foodstuffs was part of a lump sum amount paid to the claimant to compensate him for the loss he had suffered as a result of the expropriation of his house. Therefore, the claimant did not have to value each item individually.

164 See Lillich & Weston, supra note 19, at 183-84 (“claims based upon the loss of copyrights, patents, and trademarks have been deemed compensable, clearly in conformity with State Responsibility principles”). The FCSC did grant an award for nonpayment of royalties under a licensing agreement. See Ro-Search, Inc., Dec. No. IR-2274 (1994).

165 See Harold F. Allen, Dec. No. IR-0516 (1992); Tamara Marandi, Dec. No. IR-0964 (1994).

166 Terraquip, Inc., Dec. No. IR-0488 (1992) (claimant entitled to an award for lost profits); James Hillebrand, Dec. No. IR-0121 (1991) (claimant not entitled to an award for lost future earnings on an employment contract) (citing Hidetomo Shinto v. Islamic Republic of Iran, AWD 399-10273-3, 19 Iran-U.S. CI. Trib. Rep. 321 (1988 II)).

167 See Lillich & Weston, supra note 19, at 185.

168 Id.

169 See, e.g., American Int’l Group, Inc. v. Islamic Republic of Iran, AWD 93-2-3, 4 Iran-U.S. CI. Trib. Rep. 96 (1983 III) (claimant entitled to award for lost profits following the nationalization of an Iranian insurance company partially owned by claimant); Sylvania Technical Sys., Inc. v. Islamic Republic of Iran, AWD 180-64- 1, 8 Iran-U.S. CI. Trib. Rep. 298 (1985 I) (lost profits awarded when claimant could have reasonably expected to earn profits if the contract had not been terminated); Amoco Int’l Fin. Corp. v. Islamic Republic of Iran, AWD 310-56-3, 15 Iran-U.S. CI. Trib. Rep. 189, 270 (1987 II) (going-concern value of an oil concession); Phillips Petroleum Co. Iran v. Islamic Republic of Iran, AWD 425-39-2, 21 Iran-U.S. CI. Trib. Rep. 79, 122 (1989 I) (same). See also Westberg, supra note 4, at 244.

170 Terraquip, supra note 166.

171 Id.

172 Peters Prods., Inc., Dec. No. IR-0499 (1992).

173 Id. The contract was for the creation of radio and television formats. Since the contract required the Iranian entity to provide specifications, the claimant could not have reasonably expected to earn profits until it was provided with the specifications.

174 The FCSC was quite flexible in finding whether a binding agreement existed between a U.S. claimant and an Iranian entity: “binding agreements need not follow any requisite form. . . . It is sufficient if the evidence submitted demonstrates that there was an agreement whether created through writings, oral conversations, the conduct of the parties, or some combination thereof.” Stanley E. Anderson, Dec. No. IR-0005, at 4 (1991) (citing Logos Dev. Corp. v. Islamic Republic of Iran, AWD 228-487-3, 11 Iran-U.S. CI. Trib. Rep. 53 (1986 II)).

175 Hollyfield, supra note 11; Concrete Detailing, supra note 129.

176 See, e.g., Lombard, supra note 78; Richard J. Lazarski, Dec. No. IR-0138 (1991). In many cases, the Iranian-controlled employer’s termination notice acknowledged that it owed the employee a specific amount for unpaid salary and benefits. This notice also promised to forward his remaining salary and benefits to the employee. The Commission ruled that an eligible claimant merely had to submit a copy of this notice in order to receive an award. See, e.g., Marshall P. Dumeyer, Dec. No. IR-0015 (1991); Glenn L. Nutgrass, Dec. No. IR-0016 (1991); William Ray Leckemby, Dec. No. IR-0017 (1991); Lloyd A. Abel, Dec. No. IR-0019 (1991). See also 1991 FCSC Ann. Rep. 10-11.

177 See, e.g., Lauth v. Islamic Republic of Iran, AWD 233-10335-3, 11 Iran-U.S. CI. Trib. Rep. 150 (1986 II). A complete collapse could occur when widespread unrest shut down the transportation system and the employer refused to provide the promised transportation needed for the employee to get to work. Robyn Ann Bantel, Dec. No. IR-0469 (1992). The claimant in this case was entitled to three months’ termination pay even though she never made it to her employer’s place of business and, thus, never engaged in a day’s work.

178 Chapel, supra note 32; Donald Alvin Buckner, Dec. No. IR-0158 (1991).

179 Chapel, supra note 32. Tribunal precedent holds that a claimant who fails to give notice as required by an employment contract is time-barred from asserting a breach-of-contract claim before it. See text at and notes 223-41 infra.

180 See Die of Del. v. Tehran Redev. Corp., AWD 176-255-3, 8 Iran-U.S. CI. Trib. Rep. 144 (1985 I).

181 David v. Islamic Republic of Iran, AWD 476-11803-1, 24 Iran-U.S. CI. Trib. Rep. 252 (1990 I). Mr. David and Mr. Chapel worked for the same employer, IACI. Mr. David apparently made no attempt to present his claims to IACI after he left Iran. While Mr. Chapel at least tried to call IACI, it is doubtful whether these two cases can be distinguished on this fact. In any event, the Commission did not attempt to distinguish them, even though it cited David for the proposition that the failure to notify IACI would lead to the dismissal of Chapel’s contract claim. Chapel, supra note 32.

182 Iran Claims Act, supra note 1, §501 (a) (3). On the Commission’s silent use of principles of justice and equity, see text at and notes 31-33 supra. The FCSC appears to have strayed even further from Tribunal precedent in James S. Rice, Dec. No. IR-0573 (1992), where the claimant had also failed to give written notice of his claims. The Commission determined, however, that notice by telephone was sufficient contractual notice. Thus, the claimant was allowed to pursue a breach-of-contract claim instead of having to rely on the quantum meruit theory. While Chapel may have stretched the Tribunal’s application of quantum meruit, the Rice decision appears to have flatly contradicted the Tribunal’s insistence on written notice. See David, 24 Iran-U.S. CI. Trib. Rep. 252.

The Commission also awarded a more traditional quantum meruit claim in the case of Donald Alvin Buckner, supra note 178. Buckner had been terminated by his Iranian employer but continued to work on a Report for another two months at the request of his employer. Since the employer had benefited from his performance, Buckner was entitled to the equivalent of two months’ salary under the equitable theory of quantum meruit.

183 These ordinary creditor claims included claims arising out of the failure by Iranian companies to pay for goods and services rendered and claims against Iranian banks for failing to pay under a letter of credit or other negotiable instrument.

184 Anderson, supra note 174. The Commission recognized Anderson’s oral contract with his employer, an Iranian university, after the claimant submitted evidence that he had sold his chemistry equipment to the university in return for an oral promise of payment. Since the university had accepted the equipment and reaffirmed its promise to pay, the failure to pay the claimant constituted a breach of the oral contract.

185 See, e.g., West Eng’g Co., Dec. No. IR-0057 (1991) (citing Ram Int’l Indus., Inc. v. Air Force of Islamic Republic of Iran, AWD 67-148-1, 3 Iran-U.S. CI. Trib. Rep. 203 (1983 II); Economy Forms Corp. v. Islamic Republic of Iran, 3 Iran-U.S. CI. Trib. Rep. 42 (1983 II)). The Tribunal had held that delivery of goods to an agent of an Iranian company was effective delivery. Failure to pay for the delivered goods subjected the buyer to liability for payment, plus interest, even if the goods never arrived in Iran. The Tribunal also held that an American seller was justified in suspending further performance on being notified that payment would not be forthcoming.

186 West Eng’g, supra note 185 (citing U.C.C. §§2-319(a), 2-504 (purchase orders providing for delivery of the goods “F.O.B. Seller’s Place” are completed when the seller delivers the goods to the shipper)).

187 See Padgett Instruments, Dec. No. IR-0020 (1991).

188 See, e.g., West Eng’g, supra note 185; Harrisburg Inc., Dec. No. IR-0160 (1991); Curtin Matheson Scientific, Inc., Dec. No. IR-0205 (1991). In fact, most of the commercial claims that were denied were those in which the claimant had submitted no evidence of its nationality or the existence of a contract. See, e.g., Eau Claire, supra note 40; Inter-Collegiate Holidays, Inc., Dec. No. IR-0177 (1991).

189 See, e.g., Hugh D. Smith, Dec. No. IR-0003 (1991) (a debt cannot be extinguished by the issuance of a check if that check is not paid by the bank on which it is drawn) (citing Sether v. Tavana Ins. Co. (formerly Iran-Am. Int’l Ins. Co.), AWD 363-11377-72, 18 Iran-U.S. CI. Trib. Rep. 275 (1988 I)); Les-Tex Indus., supra note 29 (failure to honor contractual obligation to establish letter of credit in timely manner is breach of contract) (citing Onesco, Inc. v. National Iranian Gas Co., AWD 254-263-2, 12 Iran-U.S. CI. Trib. Rep. 160 (1986 III)).

190 The Commission cited the 1980 UN Convention on Contracts for the International Sale of Goods, Apr. 11, 1980, 19 ILM 671 (1980), to bolster its ruling in Les-Tex that the buyer is obligated to fulfill its contractual commitments to fund the letter of credit when the letter is needed to enable payment of the sales price. Les- Tex Indus., supra note 29.

191 See, e.g., Key Bank, supra note 33 (an Iranian entity cannot escape liability for nonpayment of a negotiable instrument just because its U.S. assets are frozen (citing Art. 3 of the U.C.C.)); Panelfold, supra note 28 (a bank that issues a letter of credit or sight draft assumes a binding obligation to make payment to the named beneficiary (citing Uniform Customs and Practices for Documentary Credits, No. 20, Art. 3a)).

192 See, e.g., Smith, supra note 189 (dishonored check); Key Bank, supra note 33 (dishonored check); First Nat’l Bank of Temple, Dec. No. IR-0151 (1991) (dishonored bank draft); Panelfold, supra note 28 (failure to pay under letter of credit); Les-Tex Indus., supra note 29 (failure of timely payment under letter of credit); BMIL Int’l, Dec. No. IR-0246 (1991) (dishonored sight draft).

193 See, e.g., Smith, supra note 189. The demand requirement was met by sending the check through the collection process or presenting the sight draft, in the case of the letter of credit, to the advising bank. See id. (demand for payment of a check); Panelfold, supra note 28 (demand for payment under letter of credit).

194 Key Bank, supra note 33 (obligation of drawer is not conditioned on availability of funds in drawer’s frozen U.S. bank account). Since the Iranian entity could have applied for a license to make payment from the drawer’s account or honored the negotiable instrument with fresh funds located outside the United States, payment of the instrument was not excused. Id. (citing U.C.C. §§3-413(2) (drawer must pay amount of the draft to holder on notice of dishonor); 3-508(3) (listing requirements for notice of dishonor and protest)). On Iran’s liability for its currency control regulations, see text at and notes 69-70 supra.

195 Steel, Inc., Dec. No. IR-0022 (1991).

196 Id.

197 Id.

198 Notes from Secretary of State Hull to the Mexican Ambassador, [1938] 5 Foreign Relations of The United States 674-78,685-96 passim. This standard was implicitly embraced in the Treaty of Amity, Economic Relations, and Consular Rights, Iran-U.S., Aug. 15, 1955, Art. IV, para. 2, 8 UST 899, 284 UNTS 93. For more on the interpretation of this provision by the Tribunal, see Brower, supra note 4, at 336-41.

199 See, e.g., American Int’l Group v. Islamic Republic of Iran, 4 Iran-U.S. CI. Trib. Rep. 96, 105-06 (1983 III). See also Westberg, supra note 4, at 239 (every expropriation or nationalization award of the Tribunal has applied the full compensation standard). The adequacy question is not sufficiently answered by saying that the claimant is entitled to full compensation. The Tribunal is still required to resolve the issue of which valuation method to use. The mere fact that a claimant is entitled to receive “full compensation” is not comforting if the issue of valuation is decided against him. The awards rendered by the Tribunal are effective, however, since payment is made in dollars. See Lillich & Weston, supra note 19, at 207-56.

200 General Declaration, supra note 4, para. 7. The Security Account was funded initially with $ 1 billion from Iranian assets that had been blocked under the U.S. freeze regulations. Iran promised promptly to make new deposits sufficient to maintain a minimum balance of $500 million whenever the balance in the Security Account fell below that amount. Id., paras. 6-7.

201 See, e.g., Davis, supra note 90; Honeycutt, supra note 74; Hogan, supra note 32.

202 Panelfold, supra note 28 (claimant entitled to stated amount in letter of credit plus incidental damages related to nonpayment when Iranian entity failed to pay stated amount).

203 Lump sum settlement, supra note 2, Art. III(i). See 1992 FCSC Ann. Rep. 7. Section 8(c) of the International Claims Settlement Act of 1949, 22 U.S.C. §1627(c) (1994), directs the Secretary of the Treasury to make payments in ratable portions, first to the unpaid principal amount of all awards, and then to the accrued interest on such awards. See 1992 FCSC Ann. Rep. 8; 1993 FCSC Ann. Rep. 8; 1994 FCSC Ann. Rep. 7.

204 At the conclusion of the Iran claims program, the Commission issued 1,066 awards to 1,075 claimants. This Represents approximately 33% of the 3,100 claims setded by the lump sum settlement. See supra note 9. The total aggregate amount of principal awarded to successful claimants totaled over $41 million. See 1995 FCSC Ann. Rep. 7.

205 See Abrahim-Youri v. United States, 36 Fed. CI. 482 (1996). See also 1995 FCSC Ann. Rep. 9.

206 See U.S. Const, amend. V (“nor shall private property be taken for public use without just compensation”).

207 453 U.S. 654 (1981).

208 See, e.g., United States v. Pink, 315 U.S. 203 (1942); Shanghai Power Co. v. United States, 4 CI. Ct. 237, 244 (1983), aff’d without opinion, 765 F.2d 159, cert, denied, 474 U.S. 909 (1985).

209 Abrahim-Youri, 36 Fed. CI. at 486-87. This decision is currently on appeal to the U.S. Court of Appeals for the Federal Circuit. Abrahim-Youri v. United States, No. 97-5011.

It should also be noted that, even though the Iran program claimants did not receive the full interest owing on their claims, their recovery still compared favorably with that of participants in earlier FCSC programs. See Brown, supra note 60, at 140-44; 1995 FCSC Ann. Rep. 9, 50-51.

210 See, e.g., Davis, supra note 90 (claimant entitled to actual value of property at time of loss) (citing Yeager, 17 Iran-U.S. CI. Trib. Rep. 92 (1987 IV)).

211 Id. (claimant entitled to fair market value of his property as of date of loss, taking depreciation into account) (citing Claim of Calvin Wall against Socialist Republic of Vietnam, CI. No. V–0175, Dec. No. V—0376 (1985)). See also Lillich, Richard B., The Valuation of Nationalized Property by the Foreign Claims Settlement Commission, in 1 The Valuation of Nationalized Property in International Law 95 (Lillich, Richard B. ed., 1972)Google Scholar; Brown, supra note 60, at 119-23.

212 See, e.g., Davis, supra note 90; Honeycutt, supra note 74; Hogan, supra note 32; Gartrell, supra note 77; Maloney, supra note 30 (all citing Yeager, 17 Iran-U.S. CI. Trib. Rep. 92 (1987 IV); Calvin Wall, CI. No. V-0175, Dec. No. V-0376 (1985)). See also Harris, supra note 128 (expropriated stock valued at its average trading price on Tehran stock exchange last time stock was traded).

213 See, e.g., Davis, supra note 90; Honeycutt, supra note 74. When the claimant refused to set out his claim in affidavit form, and submitted no other evidence as to his loss, the Commission dismissed the claim. See Wiley Leon Johnston, Dec. No. IR-0238 (1991). If the claimant submitted two conflicting affidavits, the Commission accepted the one least favorable to the claimant. See, e.g., Bourne, supra note 93 (Commission granted award for $3,000 when one affidavit said a group of Revolutionary Guards stole $3,000 while another said $4,000 was stolen); Polak, supra note 42 (claimant was responsible for any ambiguities in the record, which must be resolved by independent, objective evidence); Rogers, supra note 89. It was incumbent, of course, on the claimant to establish a value for lost property, and failure to do so was grounds for denial of the claim. See Walter & Sue Paynter, Dec. No. IR-1413 (1994). Claimants were, however, permitted to make reasonable revisions in their valuation of lost property. See Franklin T. & Mahin Burroughs, Dec. No. IR-1668 (1994).

214 Hogan, supra note 32; Gartrell, supra note 77. See also 1991 FCSC Ann. Rep. 11.

215 See, e.g., Hogan, supra note 32.

216 See id. The Commission accepted the values “overstated” by the claimant in this expropriation case. If the expropriated property was unique, the Commission seemed more willing to accept the claimant’s valuation. See, e.g., Husser, supra note 77 (Commission accepted claimant’s valuation of five horses); Peter H. Amira, Dec. No. IR-0369 (1992) (Commission accepted claimant’s valuation of a restored “vintage” Jeep).

217 Gartrell, supra note 77.

218 The Commission ruled that the claimant’s other property was expropriated after reviewing affidavits by two witnesses who saw a group of Revolutionary Guards confiscate the property. Id. Since Mr. Gartrell’s Iranian wife had family in the area, the Commission presumed that these “valuable and sentimental items” had been given to the claimant’s in-laws and therefore had not been confiscated. Id. at 10.

219 See, e.g., Davis, supra note 90; Maloney, supra note 30. If the claimant’s affidavit took depreciation into account, the Commission accepted the amount claimed as being the actual value of the property. See Honeycutt, supra note 74; Deady, supra note 92.

220 See, e.g., Cobbs, supra note 91; Maloney, supra note 30. In the second case decided by it, the Commission applied an 80% depreciation rule. Davis, supra note 90.

221 See, e.g., Lilialdo Esparza, Dec. No. IR-0099 (1991) (claimant’s employer had reimbursed employees for confiscated tools); Maloney, supra note 30 (claimant partially compensated by Consumer Claims Agency).

222 Esparza, supra note 221; Gaston, supra note 76; Rogers, supra note 89; Maloney, supra note 30 (all citing 22 U.S.C. §§1642f, 1643e, 1644e, 1645e; Claim of Franklyn Gonzalez against Socialist Republic of Vietnam, CI. No. V-0200, Dec. No. V-0390 (1985); Claim of Gerda Kurnik against Polish People’s Republic, CI. No. PO- 1359, Dec. No. PO-8252 (1965)).

223 The terms did not have to be written down. Thus, a security guard who provided patrol services to the Iranian Consulate’s official residence was able to establish the amount owed him under an oral contract by producing evidence that the consulate had asked him to provide the service and had paid him in the past for such service. Ralph G. Grabmeier, Dec. No. IR-0072 (1991).

224 See, e.g., Lombard, supra note 78.

225 Allen, supra note 165. The Commission actually valued the pension by taking the present discounted value of the lifelong pension as of 1980, the year in which the claimant would have begun receiving the pension. It then awarded interest on that amount.

226 See, e.g., Hillebrand, supra note 166; Benner, supra note 40.

227 See Myron M. Weis, Dec. No. IR-0073 (1991); Barbick, supra note 89. See also Benjamin Parian & Victoria Parian, Dec. No. IR-0548 (1992) (claimant who was fired in February was entitled to what he would have earned through June 30, since contract provided that employee could be terminated only at the end of the six-month period ending June 30).

228 Often an employee was entitled to 30-60 days of severance pay in lieu of notice if he was terminated prematurely, but he was not entitled to severance pay if he resigned. See, e.g., Lazarski, supra note 176; Lynwood Snider, Dec. No. IR-0199 (1991); Leslie F. Noell, Jr., Dec. No. IR-0014 (1991).

229 See, e.g., Dumeyer, supra note 176; Snider, supra note 228.

230 Lombard, supra note 78.

231 See, e.g., Backer, supra note 116; Michael R. Milgram, Deceased, Dec. No. IR-0453 (1992) (claimant was terminated after Iranian Army closed down university where she was working).

232 Bantel, supra note 177.

233 Noell, supra note 228.

234 See, e.g., id.; Paul R. Beckingham, Dec. No. IR-0607 (1992). But see James M. Cronick, Dec. No. IR-0319 (1992) (employer breached contract when it stopped making payments to claimant in December 1978; and fact that claimant “resigned” in February 1979 did not relieve employer of its breach).

235 In Noell and Beckingham, the unpaid claimants had submitted their resignations before they became aware that their employer, Information Systems Iran (ISIRAN), had terminated them. Since their employment contracts denied severance pay to those who resigned, the two claimants were not entitled to such an award. In contrast, another ISIRAN employee who returned to the United States without notifying his employer was entitled to severance pay since ISIRAN “terminated” him by acknowledging that it could not pay him. Lazarski, supra note 176.

236 Chapel, supra note 32.

237 Article XIV of IACI’s standard contract. See also text at and note 181 supra.

238 See David v. Islamic Republic of Iran, 24 Iran-U.S. CI. Trib. Rep. 252 (1990 I); Gerald John Reynolds, Dec. No. IR-0025 (1991); Chapel, supra note 32.

239 Reynolds, supra note 238.

240 Chapel, supra note 32. The Commission may have implicitly overruled this outcome in Rice, supra note 182. The facts in these cases are similar. Both men worked for IACI and left Iran on leave. They were then informed by IACI not to return from leave until the situation in Iran settled down. Both men attempted to contact the company by telephone. Mr. Rice was able to get through, while Mr. Chapel was not. The Commission determined that Mr. Rice’s telephone conversation was sufficient to provide contractual notice, while Mr. Chapel’s attempt was insufficient. Therefore, Mr. Rice was entitled to his back pay, as well as 30 days’ pay in lieu of notice of termination, while Mr. Chapel, who was entitled to back pay under the theory of quantum meruit, see text at and notes 178-82 supra, was denied his right to severance pay in lieu of notice.

241 Chapel, supra note 32; Reynolds, supra note 238 (claimant not entitled to recover anything despite having tried to contact IACI while still in Iran after being effectively terminated). But cf. Rice, supra note 182.

242 See, e.g., Les-Tex Indus., supra note 29 (proximate cause); Panelfold, supra note 28 (mitigation of damages and incidental damages).

243 See, e.g., Harrisburg, supra note 188; Curtin Matheson, supra note 188.

244 Les-Tex Indus., supra note 29 (citing Hadley v. Baxendale, 156 Eng. Rep. 145 (1854)).

245 Panelfold, supra note 28; Terraquip, supra note 166; Gulzar A. Niazi, Dec. No. IR-0744 (1992). The Commission also adopted the customary concept of contract law requiring the nonbreaching party to mitigate its damage. Thus, a claim for storage fees was denied since the claimant could have avoided these fees by selling the goods for scrap. Astronautics Corp. of Am., Dec. No. IR-0541 (1992).

246 See First Nat’l Bank, supra note 192 (claimant entitled to award for collection charges incurred in an attempt to collect on bank draft). The Commission did not cite any Tribunal precedent or any other principle of law when it awarded the claimant damages for this incidental expense.

247 Smith, supra note 189.

248 Id. The claimant asked only for the face amount of the dishonored check in his Statement of Claim.

249 First Nat’l Bank, supra note 192.

250 The claimant still had to prove that his losses were directly attributable to Iran. See, e.g., Cobbs, supra note 91. Collection expenses incurred because of the failure of an Iranian entity to pay on a negotiable instrument certainly seem to be a loss directly attributable to Iran.

251 See, e.g., Altawood, Inc., Dec. No. IR-0373 (1992); Harbridge House, Inc., Dec. No. IR-0740 (1992); Nautilus Leasing Servs., Inc., Dec. No. IR-0375 (1992); First Washington Sec. Corp., Dec. No. IR-3072 (1992).

252 Altawood, supra note 251 (citing McHarg, Roberts, Wallace & Todd v. Islamic Republic of Iran, AWD 282- 10853/10854/10855/10856-1, 13 Iran-U.S. CI. Trib. Rep. 286 (1986 TV)).

253 Nautilus Leasing, supra note 251. The Commission did leave open the possibility that costs might be recoverable if they were incurred in securing expert advice or other special assistance. Id. (citing Sylvania Technical Sys., Inc. v. Islamic Republic of Iran, 8 Iran-U.S. CI. Trib. Rep. 298 (1985 I)).

254 First Washington, supra note 251. The Commission left open the possibility that attorneys’ fees could be awarded, provided that the claimant submitted supporting documentation indicating the nature and type of legal services. It appears from this decision, however, that the Commission was very reluctant actually to issue an award for attorneys’ fees. See Astronautics, supra note 245; Environmental Research Inst, of Mich., Dec. No. IR-0416 (1992).

255 Arthur Rubloff & Co., Dec. No. IR-0417 (1992) (claimant entitled to reasonable attorneys’ fees after Iranian Consulate breached lease providing for payment of such fees in case of breach). But see Niazi, supra note 245, at 12 (noting that “[i]n no case has the Commission made an award of legal fees that were an actual element of the claim”).

256 See, e.g., Vaughn, supra note 74. The effective date of the lump sum settlement was June 22, 1990. Since the claimant was not entitled to interest from the date of the lump sum settlement to the date when he finally was paid, he did not receive “adequate” compensation, at least in the sense of a complete remedy for the previous failure of Iran to grant “prompt” compensation. See text at and notes 201-09 supra.

257 See, e.g., Northwestern University, Dec. No. IR-0071 (1991) (where there were multiple dates for the amount due, interest was calculated from the mean point of the due dates).

258 See, e.g., Vaughn, supra note 74. Tribunal precedent has held that the proper method of calculating interest is by simple interest. Padgett, supra note 187 (citing Reading & Bates Drilling Co. v. Islamic Republic of Iran, AWD 355-10633-2, 18 Iran-U.S. CI. Trib. Rep. 164 (1988 I)).

259 Padgett, supra note 187. In Padgett, an Iranian entity breached a contract for the sale of medical equipment when it failed to pay for the goods. The claimant’s invoices provided for interest to accrue on the unpaid balance at a rate of 1.5% per month. Therefore, the claimant was entitled to interest in the amount of 18% per annum. The interest had to be calculated on a simple interest basis since the invoices did not call for compound interest. But cf. Besser, supra note 69. In Besser, a private Iranian company breached several contracts that provided for interest rates ranging from 12.5% to 0. The Commission made no attempt to value the claim on the basis of the varying rates of the individual contracts but, instead, awarded the customary 10%. One possible explanation for this outcome is that the claim was not made against the private company for breach of contract but was made against Iran for an expropriation based on that Government’s currency controls. See text at and notes 69-70 supra.

260 In this regard, the Commission’s determinations on eligibility of claimants and on valuation of claims can be deemed unexceptional. The only possible irregularity was the FCSC’s failure to apply the Tribunal’s later caveat jurisprudence to the property claims of dual nationals. See text at and notes 53-57 supra. There is one explanation for this anomaly: by one reading of the Iran Claims Act, the Commission was under no obligation to apply Tribunal jurisprudence developed after the lump sum settlement. Of course, much of this Tribunal jurisprudence was in gestation during the first years of the FCSC’s Iran claims program. For example, the Saghi award, No. 544-298-2, was decided only on January 2, 1993, nearly two years after the commencement of the FCSC program.

261 See text at and notes 11-22 supra.

262 See text at and notes 129-30, 177-82, 195-97 supra.

263 See supra note 68.

264 See text at and notes 93-94 supra.

265 See text at and notes 95-97, 107-15 supra.

266 See text at and notes 98-106 supra.