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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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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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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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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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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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Dissenters deplore use of functional test rather than focus on the nature of the Central Bank’s activities
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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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