Iran Aircraft Industries v. Avco Corp.

Decision Date24 November 1992
Docket NumberNo. 29,D,29
PartiesIRAN AIRCRAFT INDUSTRIES and Iran Helicopter Support and Renewal Company, Petitioners-Appellants, v. AVCO CORPORATION, Respondent-Appellee. ocket 92-7217.
CourtU.S. Court of Appeals — Second Circuit

Bruno A. Ristau, Washington, D.C. (Ristau & Abbell, of counsel), for petitioners-appellants.

Brice M. Clagett, Washington, D.C. (Covington & Burling, Peter D. Trooboff, David H. Resnicoff, of counsel), for respondent-appellee.

Before: MESKILL, Chief Judge, LUMBARD, and CARDAMONE, Circuit Judges.

LUMBARD, Circuit Judge:

Iran Aircraft Industries and Iran Helicopter Support and Renewal Company (collectively the "Iranian parties"), both agencies and instrumentalities of the Islamic Republic of Iran, appeal from the December 10, 1991 order of the District Court for the District of Connecticut, Daly, J., granting defendant Avco Corporation's motion for summary judgment.

In granting Avco's motion, which was not timely opposed by the Iranian parties, the district court declined to enforce an award of the Iran-United States Claims Tribunal which resulted in a net balance of $3,513,086 1 due from Avco to the Iranian parties (the "Award"). The Iranian parties argue that the district court erred in declining to enforce the Award because, as claimed by the Iranian parties, the Tribunal's awards are "directly" enforceable in United States courts. In the alternative, the Iranian parties contend that the Award is enforceable under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 21 U.S.T. 2517 (the "New York Convention"). Because we find that the district court properly denied enforcement of the Award, we affirm.

Beginning in 1976, Avco entered into a series of contracts whereby it agreed to repair and replace helicopter engines and related parts for the Iranian parties. After the Iranian Revolution of 1978-79, disputes arose as to Avco's performance of, and the Iranian parties' payments under, those contracts. On January 14, 1982, the parties' disputes were submitted to the Tribunal for binding arbitration.

The Tribunal was created by the Algiers Accords (the "Accords"), an agreement between the United States and Iran, through the mediation of Algeria, which provided for the release of the 52 hostages seized at the American Embassy in Tehran on November 4, 1979. 2 In addition to providing conditions for the release of the hostages, 3 the Accords established the Tribunal to serve as a forum for the binding arbitration of all existing disputes between the governments of each country and the nationals of the other. Accordingly, the Tribunal was vested with exclusive jurisdiction over claims by nationals of the United States against Iran, claims by nationals of Iran against the United States, and counterclaims arising from the same transactions. 4 See Claims Settlement Declaration, Art. II(1).

On May 17, 1985, the Tribunal held a pre-hearing conference to consider, inter alia, "whether voluminous and complicated data should be presented through summaries, tabulations, charts, graphs or extracts in order to save time and costs." See Avco Corp. v. Iran Aircraft Indus., Case No. 261, 19 Iran-U.S.Cl.Trib.Rep. 200, 235 (1988) (Brower, J., concurring and dissenting). At the conference, Avco's counsel, Dean Cordiano, requested guidance from the Tribunal as to the appropriate method for proving certain of its claims which were based on voluminous invoices, stating:

In the interest of keeping down some of the documentation for the Tribunal we have not placed in evidence as of yet the actual supporting invoices. But we have those invoices and they are available and if the Tribunal would be interested in seeing them we can obviously place them in evidence or we can use a procedure whereby an outside auditing agency, uh, certifies to the amounts of the, uh, summaries vis-a-vis the underlying invoices. Both of those approaches can be taken. But I want to assure the Tribunal that all of the invoices reflected in our exhibits to the memorial ... exist and are available.

Id. at 235-36. After noting that the Iranian parties "obviously have had those invoices all along," Cordiano stated that he would:

like the Tribunal's guidance as to whether, uh, you would like this outside certifying agency to go through the underlying invoices and certify as to the summary amounts or that the Tribunal feels at this point that the, uh--that you would rather have the, uh, raw data, so to speak--the underlying invoices. Uh, we're prepared to do it either way.

Id. at 236.

The Chairman of Chamber Three, 5 Judge Nils Mangard of Sweden, then engaged in the following colloquy with Cordiano:

Mangard: I don't think we will be very, very much enthusiastic getting kilos and kilos of invoices.

Cordiano: That, that's what I thought so ...

Mangard: So I think it will help us ...

Cordiano: We'll use ...

Mangard: To use the alternative rather.

Cordiano: Alright ...

Mangard: On the other hand, I don't know if, if any, if there are any objections to any specific invoices so far made by the Respondents. But anyhow as a precaution maybe you could ...

Cordiano: Yes sir.

Mangard: Get an account made.

Id. at 236. Neither counsel for the Iranian parties nor the Iranian Judge attended the pre-hearing conference.

On July 22, 1985, Avco submitted to the Tribunal a Supplemental Memorial, which stated in part:

In response to the Tribunal's suggestion at the Prehearing Conference, Avco's counsel has retained Arthur Young & Co., an internationally recognized public accounting firm, to verify that the accounts receivable ledgers submitted to the Tribunal accurately reflect the actual invoices in Avco's records.

Attached to the Supplemental Memorial was an affidavit of a partner at Arthur Young & Co. which verified that the accounts receivable ledgers submitted by Avco tallied with Avco's original invoices, with the exception of one invoice for $240.14. Id. at 237.

The Tribunal held its hearing on the merits on September 16-17, 1986. By that time, Judge Mangard had resigned as Chairman of Chamber Three and had been replaced by Judge Michel Virally of France. At the hearing, Judge Parviz Ansari of Iran engaged in the following colloquy with Cordiano:

Ansari: May I ask a question? It is about the evidence. It was one of the first or one of the few cases that I have seen that the invoices have not been submitted. So what is your position on this point about the substantiation of the claim?

Cordiano: Your Honor, this point was raised at the pre-hearing conference in May of last year.

Ansari: I was not there.

Cordiano: I remember that you weren't there. I think we were kind of lonely that day. We were on one side of the table, the other side was not there ... We could have produced at some point the thousands of pages of invoices, but we chose to substantiate our invoices through ... the Arthur Young audit performed specifically for this tribunal proceeding.

Id. at 237.

The Tribunal issued the Award on July 18, 1988. Of particular relevance here, the Tribunal disallowed Avco's claims which were documented by its audited accounts receivable ledgers, stating, "[T]he Tribunal cannot grant Avco's claim solely on the basis of an affidavit and a list of invoices, even if the existence of the invoices was certified by an independent audit." Id. at 211 (majority opinion).

Judge Brower, the American judge and the only judge of the panel who was present at the pre-hearing conference, filed a separate Concurring and Dissenting Opinion in which he stated:

I believe the Tribunal has misled the Claimant, however, unwittingly, regarding the evidence it was required to submit, thereby depriving Claimant, to that extent, of the ability to present its case ...

* * * * * *

Since Claimant did exactly what it previously was told to do by the Tribunal the denial in the present Award of any of those invoice claims on the ground that more evidence should have been submitted constitutes a denial to Claimant of the ability to present its case to the Tribunal.

Id. at 231, 238.

A. "Direct" Enforceability of the Award

The Iranian parties contend that the district court erred in refusing to enforce the Award because the Tribunal's awards are "directly" enforceable in United States courts, irrespective of the defenses to the enforcement of foreign arbitral awards provided for in the New York Convention. The Iranian parties do not, and cannot, point to any mechanism in the Accords for direct enforcement of Tribunal awards issued against United States nationals. 6 Nevertheless, the Iranian parties argue that Tribunal awards must be "directly" enforced because the Accords state that "All decisions and awards of the Tribunal shall be final and binding." See Claims Settlement Declaration, Art. IV(1).

The Tribunal's own interpretation of the Accords reveals the lack of merit in the Iranian parties' position. In Islamic Republic of Iran v. United States, Case No. A/21, 14 Iran-U.S.Cl.Trib.Rep. 324 (1987), the Tribunal considered whether the Accords obligated the United States to satisfy awards issued in favor of Iran or its nationals upon the default of United States nationals. The Tribunal ruled that while the United States had no such obligation under the Accords, it had assumed a treaty obligation to provide an enforcement mechanism for the Tribunal's awards, stating:

It is therefore incumbent on each State Party to provide some procedure or mechanism whereby enforcement may be obtained within its national jurisdiction, and to ensure that the successful Party has access thereto. If procedures did not already exist as part of the State's legal system they would have to be established, by means of legislation or other appropriate measures. Such procedures must be available on a basis at least as favorable as that allowed to parties who seek recognition or...

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