The Ministry argues that if there were, as Hoffman contends, years' worth of spare parts in Iran by October , it would have been unnecessary to enter into "Modification A" in December ; the Ministry interprets "Modification A" as requiring Hoffman to begin in to ship sufficient spare parts for a month period. The Ministry made no challenge to our jurisdiction, stating instead that since Hoffman's claim is within the Tribunal's jurisdiction, so is the counterclaim.
Hoffman, however, objected to the Tribunal's jurisdiction over the counterclaim to the extent it sought relief in excess of the amount claimed, on the theory that the Tribunal lacks power to issue affirmative awards against United States nationals. As to the merits of the counterclaim, Hoffman denied that it had failed to deliver equipment and perform required services under the contract, or that the Ministry was entitled to reimbursement of any amounts previously paid. The first jurisdictional issue presented is whether the Tribunal has jurisdiction over Hoffman's claim for payments due under the contract subsequent to 19 January Hoffman's argument on this question is essentially one of equity, to the effect that, if it were not able to claim for those payments, it would be left with no recourse.
Hoffman does not allege anticipatory breach of the contract.
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With respect to equity, the Tribunal notes that while the Declaration deprives this Tribunal of jurisdiction over claims not outstanding on 19 January , it does not purport to affect the jurisdiction of any other tribunals. Thus, the Tribunal holds that the claim for payments due sub-sequent to 19 January is not within its jurisdiction.
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Hoffman is of course correct in noting that the Tribunal lacks jurisdiction over claims instituted by Iran against U. So long as a counterclaim falls within the requirements of Article II 1 , cf. Owens- Corning Fiberglass Corp. ITL , dated 13 May , 2 the counterclaim is within our jurisdiction even if it exceeds the amount of the claim. The Tribunal accordingly holds that it has jurisdiction over the Ministry's counterclaims to the full extent sought, since those counterclaims arise directly out of the contract which constitutes the subject matter of Hoffman's claim.
Neither Hoffman nor the Ministry contended that it terminated the contract. Hoffman explained that it withdrew its FSR in December due to the existence of unsafe conditions. While Hoffman acknowledged stopping factory repair services in because of the Ministry's failure to meet the June milestone payment, it denied that it was so acting in order to terminate the contract. Instead, Hoffman maintained that the contract was in "suspension".
Hoffman further denied the existence of force majeure, on the theory that the unsafe conditions which resulted in the FSR's departure and the disruption in U. The Ministry as well denied terminating the contract; it further denied the existence of force majeure excusing Hoffman's non-performance. It remains the Tribunal's task to determine from the facts what was the legal situation between the parties at the time performance ceased.
By December ; strikes, riots and other civil strife in the course of the Islamic Revolution had created classic force majeure conditions at least in Iran's major cities. By "force majeure" we mean social and economic forces beyond the power of the state to control through the exercise of due diligence.
Injuries caused by the operation at such forces are therefore not attributable to the state for purposes of its responding for damages. Similarly, as between private parties, one party cannot claim against the other for injuries suffered as a result of delays in or cessation of performance during the time force majeure conditions prevail, unless the existence of these conditions is attributable, to the fault of the Respondent party.
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With respect to the conditions prevailing in Iran which led to the FSRS' withdrawal, there was sufficient evidence of the threats they faced to justify their withdrawal, but Hoffman did not prove that those conditions were attributable to acts for which the government of Iran was responsible. Hoffman was therefore excused from maintaining its FSR in Iran, but it also follows that the Ministry's failure to pay the June milestone must similarly be excused. The Ministry, having contracted for the availability of a local technician to assure continuous functioning of the radios, was justifiably concerned whether Hoffman could continue to supply that need.
Its suspension of its performance obligations as to the payment schedule in June must therefore be considered a result of the same force majeure conditions which led to the FSRS' departure, in the absence of proof that the Government itself was responsible for the continuation of these conditions until that date. During the months February through June , the Islamic Republic was to some extent in control of the direction of the revolution, but very little evidence was presented in this case concerning its responsibility for the continuation of conditions that made return of the FSRS impossible.
Such evidence was inadequate to show that the force majeure conditions had been transformed during those few months into conditions sufficiently attributable to that Government to make its non-payment in June a breach of contract. By the time the revolution occurred, the major portion of the physical items contracted for had been delivered. Since there remained in great part the field and spare parts services to supply, Hoffman's inability to do so due to the social upheaval in Iran justified non-performance by both parties.
Continuing presence of the FSRS had clearly become impossible, at least temporarily, and their absence adversely affected the whole repair operation. In those circumstances, the Respondent cannot be held to have been required to continue payments. A suspension of both Hoffman's and the Ministry's performance obligations could not continue indefinitely without having some effect on the viability of the contract. By the summer of Hoffman might reasonably have questioned whether conditions would change in Iran in the near future so as to allow its FSRS to return.
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Accordingly, Hoffman ceased its factory repair services as well by September when it had by then become clear that further payments were not forthcoming. The Ministry, for its part, must have realized, at least by receipt of Hoffman's 10 July telex, that Hoffman was unlikely to continue performance without payment, nor was the Ministry likely to pay when services were not continuing to be rendered.
Although little evidence was presented on this question, the Ministry, presumably, foresaw no realistic hope for resumption of those services in the near future, and therefore saw no need to resume payment. The Tribunal concludes therefore that the continued existence of force majeure conditions had by mid ripened into a termination of the Hoffman-Ministry contract. Performance had become essentially impossible. Having reached this legal conclusion, the Tribunal regrets that it is not prepared, without further argument, to decide upon the consequences of that conclusion. The parties have not briefed or argued some of the key issues, and these issues are of sufficient importance for this and other cases so that prudence dictates a cautious approach.
Thus, the Tribunal desires further briefing and oral argument on the general question of what consequences should result from the discharge of the contract through frustration or impossibility to use both terms that are customarily used to describe our legal conclusion. The parties are requested to include responses to the following specific questions: 1 whether they should be left in the situation in which they found themselves after frustration of the contract or whether the Tribunal should conduct an accounting to determine whether the Claimant has been paid more or less than its performance would justify; 2 if an accounting is to be made, should experts be appointed by the Tribunal; 3 on what bases should any accounting be made including questions such as: does the U.
Accordingly, the Tribunal has decided to hold an oral hearing on these issues and any other remaining matters, which will be consolidated for hearing with the related case no. The consequences of that termination shall be decided by the Tribunal after a further oral hearing on that question and any other remaining matters, which will be consolidated for hearing with the related case no. Deliberations in this case began soon after the Hearing on 12 January , although they proceeded slowly because of the sub-mission by both parties, with permission of the Tribunal, of post-hearing briefs.
All three arbitrators participated fully in these deliberations, which continued until the end of May. Throughout the deliberations all three arbitrators had been in agreement that July would be fully dedicated to the final deliberations in this and the other pending cases, in view of the 1 August effective date of Chairman Bellet's resignation from the Tribunal.
On 23 June , however, Mr. Shafeiei sent Chairman Bellet a note informing him that he intended to be absent from the Tribunal on vacation until the end of July. The Chairman responded by a note dated 29 June saying that, while a brief vacation was acceptable, Mr. Shafeiei was expected after 5 July. One of the main priorities for SOCOM is to carry out counterterror missions, but the National Defense Strategy focuses on great power competition against near-peer adversaries Russia and China, so House lawmakers wanted to know how special forces fit in a strategy that focuses less on counterterrorism and more on powerful adversaries.
Richard Clarke said during the hearing. Cyber Command, U. Strategic Command and U. Sign up for the Early Bird Brief, the defense industry's most comprehensive news and information, straight to your inbox. By giving us your email, you are opting in to the Early Bird Brief. The relationships that U. So some new concepts for employment of special forces will likely emerge, according to Mitchell. But there are a few tasks where, if given the chance, SOCOM would take off its plate, particularly to improve its deployment ratio with double the time spent at home compared to overseas.
Clarke said special forces in Africa could be better optimized.