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The 'Important Caveat'

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Chapter Summary

This chapter reviews about the formulation in A/18 speaks of the caveat as ‘relevant to the merits’ of a claim, and it says nothing about the scope of its application being limited to cases of fraudulent use. An alternative approach to the caveat – the functional approach, is adopted by the Tribunal in two of the cases before it. It offers its own solution to the jurisdiction versus merits controversy. The caveat enquiry under this approach is made as part of the search for the claimant’s most relevant nationality in the context of his claim, always leading, however, to a ruling on the claimant’s nationality. As to the scope of the caveat’s application, Iran maintained that each and every one of the rules of general international law precluded the consideration of the merits of a claim because of the claimant’s lack of good faith remained relevant.

Keywords: Caveat; claimant; fraudulent use; international law; Iran; jurisdiction; the functional approach; the Tribunal



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