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Dissenting judges see no actual impediment to commerce between the two nations
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Legal impediments put on Iranian assets violated commitment to freedom of commerce
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Free transfers provision is concerned solely with exchange restrictions
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Right to dispose of property not breached by expropriations that extinguished ownership of such property
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“Most constant protection and security” standard is limited to protection against physical harm, lest FET and FPS standards would largely overlap
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Dissenters see no expropriation, but
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Attachments to satisfy judgments do not necessarily amount to an expropriation, but unreasonableness of underlying measures tips the scale in this case
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“Access to courts” obligation is not concerned with substantive rights of the parties participating in domestic proceedings
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Dissenting judges consider that it was reasonable to lift the corporate veil to prevent Iran from ignoring its obligations to compensate victims of terror attacks
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Several judges disagree that obligation to recognise juridical status of Iranian companies entailed duty to respect their separate legal character
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Manifestly excessive measures breached were “unreasonable” and breached the non-impairment standard
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No denial of justice since Iranian entities were able to dispute measures in US courts
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Obligation to recognise juridical status entails duty to respect separate legal personality
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Dissenter sees abuse of rights given lack of relation between underlying measures and the 1955 Treaty’s object and purpose; “essential security interest” defence should have been upheld
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Mere assertion that measures were necessary to protect essential security interest does not suffice to meet standard of proof
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USA failed to demonstrate with “compelling evidence” abuse of rights by Iran
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Clean hands defence, even if it applies under international law, cannot prosper absent nexus between alleged wrongful acts and claims
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Dissenting judges stress that low odds of success are not relevant to assessing whether remedies are available to be exhausted
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Iranian entities had no prospect of obtaining favourable remedies in the USA, given primacy of more recent laws over the 1955 Treaty in the US legal system
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Bank Markazi did not engage in commercial activities beyond its sovereign purpose, and thus does not qualify for protection under the 1955 Treaty
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Background: Legislation allowing for collection of debt judgments against Iranian assets leads to ICJ claim by Iran against the USA
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Costs follow the event, especially in view of the investors’ fraud on the tribunal
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Counterclaims are not made out, as Laos took reasonable steps in view of the investors’ lack of cooperation
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Untrue claim and defence constitute a fraud on the tribunal
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