Flexi-Van Leasing, Inc v. Iran, Award Award No. 259-36-1, Dissenting Opinion of Judge Holtzmann , 13 Oct 1986

I dissent from the Award in this Case which denies Flexi-Van Leasing, Inc. (“Flexi-Van”) compensation for unpaid rentals and unreturned equipment due it under lease agreements with two shipping companies that had been taken over by the Government of the Islamic Republic of Iran (“the Government”). The Tribunal reaches this unfair result despite the fact that it recognizes that leases existed, that rents were not paid, that the equipment was held in Iran, and that the companies involved were under the complete control of the Government. The Government replaced the management of the two companies with its own representatives, and it should not now be permitted to escape responsibility for the damage it caused to Flexi-Van. CSA and DJG contracted to work together on a residential building project at 3 Southport Drive in Mashpee (“the property” or “the Mashpee project”), with DJG as the general contractor for construction. On March 1, 2004, DJG and Whitten also executed a subcontract that was specific to the Mashpee project (“subcontract”).

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Flexi-Van is a corporation organized in the United States that leases cargo containers, chassis, trailer trucks, and marine transport equipment throughout the world. In the course of its business, it leased equipment to two unrelated Iranian shipping companies, Star Line Iran, Co. (“Star Line”) and Iran Express Lines, Co. (“Iran Express”). The leases, which followed several standard forms, all required the lessee to pay monthly rent, to return the equipment to Flexi-Van at the end of the lease, and to pay Flexi-Van the value of any unreturned equipment. Under the lease agreements, each lessee was obligated to protect and maintain the equipment in good repair, and if it was lost, stolen, or damaged to reimburse Flexi-Van for its value. By using this site, you are agreeing to security monitoring and auditing.

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The subcontract does not define the phase “the work under this Agreement” used in the indemnity provision. However, Whitten contends that “work under this Agreement” is the equivalent of “scope of work,” a phrase which is defined in the subcontract. Paragraph II of the subcontract directs the reader to an exhibit for a definition of “scope of work.” Exhibit A-1 to the subcontract defines “Scope of Work for Whitten Landscaping.” An online business that handle payments and sensitive user information must use HTTPS. When I have questions, can I contact the customer service staff of the website joyinsea.com in time?

In addition, there are no clues in the text of the agreement that would suggest that “scope of work” means anything other than “the work under this Agreement.” There exists no `international bar’ regulating the practice of forensic advocacy before international courts and tribunals. Before arbitral tribunals such as the International Centre for Settlement of Investment Disputes and the Iran-US Claims Tribunal, legal argumentation is almost entirely left to the discretion of parties. There has been concern amongst participants in the arbitral process regarding ethical issues that have arisen concerning the conduct of representatives. In the absence of prescribed admission requirements or deontological rules, it is further submitted that ICSID tribunals have an inherent power to protect the integrity of their own proceedings by sanctioning representatives for misconduct. It is recommended that, as part of the progressive professionalisation of the international judicial system, the principles of integrity of arbitral proceedings, fair trial and equality of arms require that all litigants’ representatives be subjected to uniform standards of conduct.