Author: Arthur W. Rovine*
Published: December 1992
Description: Hans Smit is one of the world’s leading teachers and arbitrators in the burgeoning field of international commercial arbitration. His contributions have been enormous, and it is fitting that we recognize his work in a book of essays and articles designed to pay him honor. I am pleased to have been asked to contribute to this book.
Hans Smit is everywhere in international commercial arbitration. There is hardly a corner of the field in which he has not worked and made a contribution. However, an area in which I served, and in which I did not see Hans Smit, came about when I was the United States’ first Agent to the Iran-U.S. Claims Tribunal in the Hague during the period 1981-1983. I have thus chosen to contribute an essay on the subject of the functions of the U.S. Agent to the Tribunal in the hope, probably misplaced, that the subject is not already entirely familiar to Hans.
In early 1981, not long after the entry into force of the Algiers Accords1 between the United States and Iran, I was asked by the Legal Adviser of the Department of State if I would relocate to the Hague for two years to serve as the first United States Agent to the Iran-U.S. Claims Tribunal, which had been established by the Accords, but had not yet become a reality.
The first question, of course, was what would be the role of the Agent? What were to be his functions? There was little in the way of response to these questions. The Claims Settlement Declaration itself, in Article VI(2), made but one mention of an Agent:
Each government shall designate an agent at the seat of the Tribunal to represent it to the Tribunal and to receive notices or other communications directed to it or to its nationals, agencies, instrumentalities, or entities in connection with proceedings before the Tribunal.
A Government agent at an international claims tribunal is certainly a well-known fixture. Agents have represented governments in cases at the International Court of Justice and many other international tribunals in connection with particular disputes or sets of disputes requiring the presence of a government representative.
The Iran-U.S. Claims Tribunal, however, would be different. The Tribunal had jurisdiction in an adversarial setting not only over both U.S and Iran governmental claims, but over a massive number of private corporate and individual claims, many of them major in size and substance. It was understood that the Tribunal would require a number of years to complete its work, even though divided into chambers which would permit the hearing and decision of more than one case at a time. Both the U.S. Government and the Government of Iran had a permanent interest in its work. The international community also had an interest in the promise of an international tribunal created to resolve claims in a manner consistent with legal principles, rather than largely diplomatic considerations.
*Mr. Rovine is a partner in the New York Office of Baker & McKenzie, where he is a member of the Litigation Department. His practice, and that of his colleagues, concentrates on international arbitration and transnational litigation.