* [The UNCC Decisions and Panel Reports are reproduced from the following UN Documents: S/AC.26/Dec.24 (1994), December 15, 1994; S/AC.26/Dec.30 (1995), May 17, 1995; S/AC.26/Dec.35 (1995), December 13, 1995; S/AC.26/1995/2, March 22, 1995; S/AC.26/1995/3, May 17, 1995; S/AC.26/1995/4, October 12, 1995; S/AC.26/1995/5, December 13, 1995; S/AC.26/1994/4, December 15, 1994; S/AC.26/1995/1, March 22, 1995; S/AC.26/1995/6, December 13, 1995; and S/AC.26/1994/3, December 21, 1994, pp. 1-58, 226-28, and Annexes VI and VII. The Introductory Note was prepared for International Legal Materialsby David D. Caron, Professor of Law at the University of California - Berkeley, with the assistance of Himamauli Das.

[UNCC Decisions 14-23 and associated Panel Reports and Recommendations, with an Introductory Note by David D. Caron, appear at 34 I.L.M. 235 (1995); UNCC Decisions 3-13 and associated Report, with an Introductory Note by David D. Caron, appear at 31 I.L.M. 1009 (1992); UNCC Decisions 1-2 and UN Documents concerning the settlement of claims against Iraq appear at 30 I.L.M. 1703 (1991); and the Iraq-UN Memorandum of Understanding on the Sale of Iraqi Oil appears at 35 I.L.M. 1095 (1996).]

1 The second installment of category “B” claims was comprised of approximately 4,600 claims. This installment was divided into two parts for organizational purposes. Part One consisted of 2,286 claims; Part Two, approximately 2,300 claims. Decision 26, para. 4. Pag151

1 The recommendations concerning the first instalment of claims are contained in the “Report and Recommendations Made by the Panel of Commissioners Concerning the First Instalment of Claims for Departure from Iraq or Kuwait (Category ‘A’ Claims)”, (S/AC.26/1994/2), (hereinafter referred to as the “first report“). General information regarding the establishmemt of the United Nations Compensation Commission in the aftermath of the Gulf crisis as well as the composition of the Panel are contained in the introduction to the first report.

2 S/AC.26/1992/10, article 37 (e) requires that “ [e]ach Panel will report in writing through the Executive Secretary to the Governing Council on the claims received and the amount recommended to be allocated to each Government or other entity for each consolidated claim. Each report will briefly explain the reasons for the recommendations and, to the extent practicable within the time-limit, contain a breakdown of the recommendations in respect of individual claims within each consolidated claim”.

3 S/AC.26/1991/1, (hereinafter referred to as “Decision

4 S/AC.26/Dec.21 (1994), (hereinafter referred to as “Decision 21“) .

5 S/AC.26/Dec.l7 (1994), (hereinafter referred to as “Decision 17“) .

6 The Panel notes the decision of the Governing Council on “Multi-Category Departure Claims” (S/AC.26/Dec.24 (1994), that addresses the situation where claimants filing a claim in category “A” had also filed departure claims in category “C” and/or “D”. Since the application of the remedial measures included in this decision will take place in conjunction with the processing of claims in category “C” and/or “D”, the Panel has made its recommendations for category “A” claims independent of the fact as to whether or not category “A” claimants have also filed departure claims in category “C” and/or “D” .

7 S/AC.26/1992/16, (hereinafter referred to as “Decision 16“)

8 These claims were submitted before the Czech and Slovak Federal Republic ceased to exist . Awards of compensation will have to be paid to the Governments of the Czech Republic and the Slovak Republic, respectively, pursuant to an agreement between the two Governments.

1/ S/AC.26/1992/10. Article 37(e) requires that “[e]ach Panel will report in writing through the Executive Secretary to the Governing Council on the claims received and the amount recommended to be allocated to each Government or other entity for each consolidated claim. Each report will briefly explain the reasons for the recommendations and, to the extent practicable within the time-limit, contain a breakdown of the recommendations in respect of individual claims within each consolidated claim”.

2/ The recommendations concerning the first instalment of claims are contained in the “Report and Recommendations Made by the Panel of Commissioners Concerning the First Instalment of Claims for Departure from Iraq or Kuwait (Category ‘A’ Claims)” (S/AC.26/1994/2) (hereinafter referred to as the “first report“). General information regarding the establishment of the United Nations Compensation Commission in the aftermath of the Gulf crisis as well as the composition of the Panel are contained in the introduction to the first report. The recommendations concerning the second instalment of claims are contained in the “Report and Recommendations Made by the Panel of Commissioners Concerning the Second Instalment of Claims for Departure from Iraq or Kuwait (Category ‘A’ Claims)” (S/AC.26/1995/2) (hereinafter referred to as the “second report“). The recommendations concerning the third instalment of claims are contained in the “Report and Recommendations Made by the Panel of Commissioners Concerning the Third Instalment of Claims for Departure from Iraq or Kuwait (Category ‘A’ Claims)” (S/AC.26/1995/3) (hereinafter referred to as the “third report“).

3/ S/AC.26/1991/1 (hereinafter referred to as “Decision 1“).

4/ See infra. Parts IV.E.l and IV.E.3.

5/ Declaration of the Government of the Democratic and Popular Republic of Algeria Concerning the Settlement of Claims by the Government of the United States of America and the Government of the Islamic Republic of Iran, 19 January 1981, Iran-US Claims Tribunal Reports (1983), vol. 1, p. 9.

6/ See, e.g., Ted L. Stein, “Jurisprudence and Jurists’ Prudence: The Iranian Forum Clause Decisions of the Iran-U.S. Claims Tribunal”, American Journal of International Law (1984), vol. 78, p. 1 ; R. Hakan Berglin, “The Iranian Forum Clause Decisions of the Iran-United States Claims Tribunal”, Texas International Law Journal (1985), vol. 21, p. 39.

7/ See Jochen A. Frowein, “Fact-Finding by the European Commission of Human Rights”, Fact-Finding Before International Tribunals. Eleventh Sokol Colloquium, Richard B. Lillich ed. (Transnational Publishers Inc., New York 1992), p. 237, paras. 247-248.

8/ Application Nos. 6780/74 and 6950/75, Report of 10 July 1976, special publication of the Council of Europe, p. 119. The case ended with Resolution DH(79)1 adopted by the Committee of Ministers of the Council of Europe on 20 January 1979, according to which the events in Cyprus constituted violations of the Convention. See also Cyprus v. Turkey (Application No. 8007/77), Report of the Commission of 4 October 1983, European Commission of Human Rights, Decisions and Reports, vol. 72, p. 5, paras. 29-39 (conclusions concerning an “indefinite number” of “missing persons” drawn on the basis of illustrative cases). See also ibid.. p. 62 [Resolution DH(92) 12 of 2 April 1992 of the Committee of Ministers deciding to make public the report]. Unlike Ireland v. United Kingdom, the cases just mentioned did not go to the European Court of Human Rights, the respondent Government not having recognized the Court's jurisdiction at the relevant time.

9/ European Court of Human Rights, Judgement of 18 January 1978, Eur. Court H.R., Series A, vol. 25.

10/ See ibid., paras. 92-187.

11/ See the Final Report of Commissioner and Decisions and Opinions, Reports of International Arbitral Awards (RTAA) vol. 6, p. 209, where the Commissioner decided: “With respect to [a certain category of] claims the principles and rules announced in the decisions and opinions of the Umpire of the Mixed Claims Commission, United States and Germany, will, so far as applicable, govern”.

12/ See, e.g., RIAA, vol. 14, p. 27.

13/ See also David J. Bederman, “Historic Analogues of the United Nations Compensation Commission”, The United Nations compensation Commission. Thirteenth Sokol Colloquium, Richard B. Lillich ed. (Transnational Publishers Inc., New York 1995), p. 257.

14/ Legislation making it possible to adopt a mass claims approach is being prepared also in certain countries not specifically dealt with below. Thus, in Finland a working group set up by the Ministry of Justice adopted in 1995 a proposal concerning a Group Action Act: Ehdotus ryhmäkannelaiksi (Proposal for a Group Action Act), Publication of the Legislative Department of the Ministry of Justice 1/1995. Also in Sweden a report by a law reform committee on the same subject matter was published recently: Grupprätteaang (Group Action Proceedings), Statens offentligautredningar (Official Reports of Swedish Legislative and Investigations Commissions) 1994:151 (vols. A, B and C ).

15/ Gary D. Watson, “Ontario's New Class Proceedings Legislation: An Analysis”, Guide to Case Management and Class Proceedings-Watson and McGowan Ontario Civil Practice (Ontario, Carswell Thomas Professional Publishing, 1994), p. 2.

16/ Claude Masse, “La Compensation des victimes de desastres collect!fs au Quebec. Windsor Yearbook of Access to Justice (1989), vol. 9, p. 10.

17/ Watson, on. cit.. pp. 1-11.

18/ There is substantial United States legal literature related to sampling and mass claims processing techniques in general. See, e.g., the following articles: James F. Blumstein, Randall R, Bovbjerg and Frank A. Sloan, “Beyond Tort Reform: Developing Better Tools for Assessing Damages for Personal Injury”, Yale Journal on Regulation (1991), vol. 8, p. 171; Marc Galanter, “Bhopals, Past and Present: The Changing Legal Response to Mass Disaster”, Windsor Yearbook of Access to Justice (1990), vol. 10, p.151; Earl Johnson, Jr., with Elizabeth Shwartz, “A Preliminary Analysis of Alternative Strategies for Processing Civil Disputes”, National Institute of Law Enforcement and Criminal Justice (1978); Francis E. McGovern ed. , “Claims Resolution Facilities and the Mass Settlement of Mass Torts”, Law and Contemporarv Problems (1990), vol. 53, ; Francis E. McGovern, “The Intellectual Heritage of Claims Processing at the United Nations Compensation Commission”, The United Nations Compensation Commission. Thirteenth Sokol Colloquium, Richard B. Lillich ed., (Transnational Publishers Inc., New York 1995); Francis E. McGovern, “An Analysis of Mass Torts for Judges”, Texas Law Review (1995), vol. 73, p. 1821 ; Francis E. McGovern, “Looking to the Future of Mass Torts: A Comment on Schuck and Siciliano”, Cornell Law Review (1995), vol. 80, p. 101.

19/ The background facts are derived from Hawkinson v. A.H. Robins. Federal Supplement (1984), vol. 595, p. 1290 and from Francis E. McGovern, “Resolving Mature Mass Tort Litigation”, Boston Law Review (1989) vol. 65, p. 659.

20/ Federal Supplement. vol. 751, p. 649 (E.D. Tex. 1990). The facts of this case were also drawn from Michael J. Saks and Peter D. Blanck, “Justice Improved: The Unrecognized Benefits of Aggregation and Sampling in the Trial of Mass Torts”, Stanford Law Review (1992), vol. 44, pp. 819-826.

21/ After Cimino, a similar sampling approach was adopted in the case of In re Shell Oil Refinery. Federal Rules Decisions (1991), vol. 136, p. 588.

22/ Saks and Blanck, op cit. . pp. 816-820.

23/ Weekly Law Reports 1987, vol. 1, p. 1136.

24/ It should be noted that this order was only made possible by the decision of the House of Lords in the same year in the case of Aiden Shipping Co. Ltd. v. Interbulk Ltd. ([1986] A.C. 965) in which the courts were given a very wide discretion in determining who is liable for the costs incurred in proceedings.

25/ Ibid.. p. 1143.

26/ John Griffiths, “Class Actions in Administrative Law An Australian Perspective”, International Legal Practitioner (June 1990), p. 53.

27/ S/AC.26/Dec.21 (1994) (hereinafter referred to as “Decision 21“).

28/ S/AC.26/1992/16 (hereinafter referred to as “Decision 16“).

29/ A sample was selected for each of the countries and international organizations that have submitted over 100 claims. However, it was deemed unnecessary to select samples for those countries and organizations that submitted less than 100 claims. In the latter cases, all the claims submitted by the particular country or organization were reviewed individually. However, the review of these claims was conducted in accordance with the same criteria and considerations applied in the sampling of the claims of the countries and organizations that submitted over 100 claims.

30/ Whereas the total number of claims can also be a factor in determining the sample size, when the population from which the sample is to be drawn is very large, its influence on the size of the sample is negligible. Accordingly, adding more claims to a sample that already adequately reflects the prominent proportion would neither improve the representativeness of the sample nor increase the accuracy of the extrapolation. Sample sizes thus did not increase proportionally with the total number of claims.

31/ Each claimant was requested on the category “A” claim form to indicate the evidentiary items that he or she attached to his or her form. For this purpose, the claimant could tick one or more of six boxes representing the following types of evidence: Copy of Official I.D. issued by Iraq or Kuwait, Used Tickets, Visa/Passport Stamp, Boarding Pass, Receipts/Bills, and Other. The claim form also requested claimants to attach a statement including the address of last residence and last place of work in Iraq or Kuwait, and to describe how they travelled from Iraq or Kuwait to their, ultimate destination. Although the paper claim form did not provide a tick box for claimants to check whether they have included such a statement, the category “A” Data Capture System software (DCS) did. Thus, the distribution of evidence among the entire population of claims from each country or international organization can be determined from the category “A” claims database, i.e., the percentage of claimants who ticked Official I.D., Used Tickets, etc. The statisticians were asked to compile a sample that would reflect this distribution.

32/ When the percentage of a particular evidentiary item is close to either 0 or 100, the population may be considered to have a high level of homogeneity with respect to that evidence type. The highest degree of heterogeneity is present when the percentage for a particular type of evidence is close to 50. A standard statistical method is to base the sample size on the type of evidence presenting the highest degree of heterogeneity. In such cases, the sample would also account for the lack of homogeneity present in the other types of evidence. In the present context, for each country, the sample size was determined by examining the percentage of presented evidence for each type and selecting the percentage proportion closest to 50 the prominent proportion in order to maximize the likelihood that the sample would be representative of the population in respect of the distribution of evidentiary items.

33/ D. S. Moore and G.P. McCabe, Introduction to the Practice of Statistics (W.H. Freeman and Company, New York, 1989), p. 447.

34/ A variety of statistical formulae exist for the calculation of a sample size. The choice of the appropriate formula for a particular situation depends on the nature of the data available. Upon a careful examination of the computerized category “A” claims data, the following statistical formula, which is a standard formula (see, e.g., Moore and McCabe, on. cit.. and William G. Cochran, Sampling Techniques, Third Edition (John Wiley &Sons, New York 1977)], has been used to calculate the sample sizes for the different countries and international organizations:(IMAGE) where n = sample size p = prominent proportion N = overall number of claims d = margin of error z = confidence level.

35/ See supra note 31.

36/ See Part IV. D. 3. of the first report.

37/ The way this works in practice is best illustrated through the study of an example: (1) Sample size: 320 (2) Selective assessment: Types of evidence I. Official I.D. II. Used Tickets III. Visa/Passport Stamp IV. Boarding Pass V. Receipts/Bills VI. Other VII. Statement VIII. None Percentage “Conclusive” per type 88% - 97% 100% - 96% 95% - In the above example, 97 per cent of the sample claimants who actually attached “Visa/ Passport Stamps” had submitted evidence that was assessed to be “conclusive”. The Panel would have found this percentage sufficiently highto hold that all “Visa/Passport Stamp” submitters were entitled to compensation; therefore all the claimants who were registered in the category “A” claims database as having submitted “Visa/ Passport Stamp” would have been recommended for payment of compensation. The Panel would have also come to the conclusion that the 96 per cent “conclusive” within the “Other” type, the 95 per cent “conclusive” within “Statement” and the 100 per cent “conclusive” within the “Boarding Pass” type were high enough to hold that all those who are registered as having these types of evidence in the database should be compensated. However, if the Panel determined that the 88 per cent “conclusive” within the “Official I.D.” type was not sufficiently high, then the Panel would have held that those who ticked “Official I.D.” in the database should not be awarded compensation based on that evidence alone. However, those who ticked “Official. I.D.” in combination with another type of evidence such as “Visa/ Passport Stamp”, regarding which the “Percentage conclusive per type” was deemed sufficiently high by the Panel, would be eligible to receive compensation. In other words, the percentages of evidence found to be “conclusive” per type were not mutually exclusive. For example, of the 88 per cent of “Official I.D.” submitters who were assessed “conclusive”, many would have attached “Official I.D.” as well as “Visa/Passport Stamp”, or “Official I.D.” and “Other” and so on. Therefore, if all “Visa/ Passport” submitters were recommended to be eligible for compensation, these would have included many “Official I.D.” submitters. Under this scenario, only those “Official I.D.” submitters who did not submit any other type of evidence that would be deemed to be generally “conclusive” by the Panel would be subjected to further verification, i.e., their government would be asked to submit the paper forms of their claims and the evidence attached thereto. Furthermore, this particular sample did not have any claimants who attached “Used Tickets” or “Receipts/Bills”. Such a situation occurred in a number of samples due to the fact that the samples selected were not intended to reflect types of evidence with negligible percentages in the overall population of claims. In the case, of types of evidence not reflected in the sample, the Panel decided to ask the governments to send the paper claim forms, and attached evidence, of the claimants who are registred in the claims database as having only these types of evidence.

1/ These claims were submitted before the Czech and Slovak Federal Republic ceased to exist. Awards of compensation will have to be paid to the Governments of the Czech Republic and the Slovak Republic, respectively, pursuant to an agreement between the two Governments.

2/ These claims were submitted before the Czech and Slovak Federal Republic ceased to exist. Awards of compensation will have to be paid to the Governments of the Czech Republic and the Slovak Republic, respectively, pursuant to an agreement between the two Governments.

1/ S/AC.26/1992/10. Article 37(e) requires that “[e)ach Panel will report in writing through the Executive Secretary to the Governing Council on the claims received and the amount recommended to be allocated to each Government or other entity for each consolidated claim. Each report will briefly explain the reasons for the recommendations and, to the extent practicable within the time-limit, contain a breakdown of the recommendations in respect of individual claims within each consolidated claim”.

2/ The recommendations concerning the first instalment of claims are contained in the “Report and Recommendations Made by the Panel of Commissioners Concerning the First Instalment of Claims for Departure from Iraq or Kuwait (Category ‘A’ Claims)” (S/AC.26/1994/2) (hereinafter referred to as the “first report“). General information regarding the establishment of the United Nations Compensation Commission in the aftermath of the Gulf crisis as well as the composition of the Panel are contained in the introduction to the first report. The recommendations concerning the second instalment of claims are contained in the “Report and Recommendations Made by the Panel of Commissioners Concerning the Second Instalment of Claims for Departure from Iraq or Kuwait (Category ‘A’ Claims)” (S/AC.26/1995/2). The recommendations concerning the third instalment of claims are contained in the “Report and Recommendations Made by the Panel of Commissioners Concerning the Third Instalment of Claims for Departure from Iraq or Kuwait (Category ‘A’ Claims)” (S/AC.26/1995/3). The recommendations concerning the fourth instalment of claims are contained in the ‘Report and Recommendations Made by the Panel of Commissioners Concerning the Fourth Instalment of Claims for Departure from Iraq or Kuwait (Category “A” claims)” (S/AC.26/1995/4) (hereinafter referred to as the “fourth report“).

3/ For a more detailed description of the nature of category “A” claims, the Claim Form “A” and the amounts that can be claimed under this category, reference is made to Part I of the first report.

4/ On the basis of the considerations formulated in Part IV.C.3. of the first report, the Panel reiterates its recommendation that interest should be paid on the awarded amounts in category “A” claims in accordance with the Governing Council Decision on “Awards of Interest” (S/AC.26/1992/16). The Panel reiterates its opinion that the phrase “the date the loss occurred” in Decision 16 should be interpreted to be a single date for all category “A” claims and that the date of invasion, 2 August 1990, should serve as the fixed date.

1/ S/AC.26/1992/10, article 37(e): “Each Panel will report in writing through the Executive Secretary to the Governing Council on the claims received and the amount recommended to be allocated to each Government or other entity for each consolidated claim. Each report will briefly explain the reasons for the recommendations and, to the extent practicable within the time-limit, contain a breakdown of the recommendations in respect of individual claims within each consolidated claim.“

2/ Rules, article 30, paragraph 2; article 33, paragraph 2.

3/ Dr. Marcel Dubouloz, former Deputy Medical Director of the Medical Division of the International Committee of the Red Cross, Secretary General of the International Society of Disaster Medicine.

4/ “Recommendations Made by the Panel of Commissioners Concerning Individual Claims for Serious Personal Injury or Death (Category “B” Claims),” S/AC.26/1994/1, (hereinafter referred to as the “first report“).

5/ “Decision Concerning the First Instalment of Claims for Serious Personal Injury or Death (Category “B” Claims) taken by the Governing Council of the United Nations Compensation Commission at its 43rd Meeting held on 26 May 1994 in Geneva,” S/AC.26/Dec. 20 (1994), (hereinafter referred to as “Decision 20“).

6/ First report, pp. 7-11. [34 I.L.M. 269-73 (1995)]

7/ For example, the United Nations Development Program (UNDP) and the United Nations High Commissioner for Refugees (UNHCR) have submitted claims on behalf of individuals who were otherwise not in a position to have Governments present their claims.

8/ First report, pp. 7-8. [341.L.M. 269-70 (1995)]

9/ Rules, article 37(b): “With respect to claims that cannot be completely verified through the computerized database, if the volume of claims is large, the panel may check individual claims on the basis of a sampling with further verification only as circumstances warrant.“

10/ “Multi-Category Claims,” S/AC.26/Dec.21(1994), (hereinafter referred to as “Decision 21“).

11/ “Criteria for the expedited Processing of Urgent Claims,” S/AC.26/1991/1, (hereinafter referred to as “Decision 1“), paragraph 17.

12/ “Eligibility for Compensation of Members of the Allied Coalition Armed Forces,” S/AC.26/1992/11.

13/ See discussion at pages 15-17 in the first report. [34 I.L.M. 277-78 (1995)]

14/ First report, p.20. [34 I.L.M. 280 (1995)].

15/ See discussion at pages 21-23 in the first report. [34 I.L.M. 282-83 (1995)]

16/ See discussion at pages 24-25 in the first report[34 I.L.M. 284-85 (1995)]

17/ Decision 1, paragraph 18.

18/ Idem.

19/ First report, p. 27. [34 I.L.M. 287 (1995)]

20/ “Personal Injury and Mental Pain and Anguish,” S/AC.26/1991/3, (hereinafter referred to as “Decision 3“).

21/ Decision 3: “'Serious personal injury’ does not include the following: bruises, simple strains and sprains, minor burns, cuts and wounds; or other irritations noJi requiring a course of medical treatment.“

22/ First report, p. 28. [341.L.M. 287 (1995)1

23/ First report, p. 29. [34 I.L.M. 289 (1995)]

24/ See first report, pp. 30-41. [34 I.L.M. 289-99 (1995

25/ In the example cited above of claims by the wife of the deceased, his mother and father, and his son and two daughters, the recommended family award of the $US 10,000.00 maximum should be divided by six, so that each eligible successful claimant receives an equal share equivalent to $US 1,666.66.

26/ First report, p. 19. [341.L.M. 280 (1995)]

27/ The letter code in the annexes that indicates that the claim has been recommended for compensation is “Y“; this letter is located in either the column entitled “Decision Injury” or in the column entitled “Decision Death.“

28/ The letter code in the annexes that indicates that a claim has been transferred to the category “C” Panel of Commissioners is “C“; this letter is located in either the column entitled “Decision Injury” or in the column entitled “Decision Death.“

29/ The letter code in the annexes that indicates that a claim has been suspended is “S“; this letter is located in either the column entitled “Decision Injury” or in the column entitled “Decision Death”.

30/ These letter codes are located in either the column entitled “Decision Injury” or “Decision Death” in the annexes.

1/ S/AC.26/1992/10, article 37(e): “Each Panel will report in writing through the Executive Secretary to the Governing Council on the claims received and the amount recommended to be allocated to each Government or other entity for each consolidated claim. Each report will briefly explain the reasons for the recommendations and, to the extent practicable within the time-limit, contain a breakdown of the recommendations in respect of individual claims within each consolidated claim.

2/ “Report and Recommendations Made by the Panel of Commissioners Concerning Part One of the Second Instalment of Claims for Serious Personal Injury or Death (Category ‘B’ Claims),” S/AC.26/1994/4, (the “second report“).

3/ “Decision Concerning Part One of the Second Instalment of Claims for Serious Personal Injury or Death (Category VB’ Claims) Taken by the Governing Council of the United Nations Compensation Commission at its 48th Meeting, held on 14 December 1994 in Geneva,” S/AC.26/Dec.26 (1994), (“Decision 26“).

4/ Rules, article 33, paragraph 2; article 30, paragraph 2.

5/ Dr. Marcel Dubouloz, former Deputy Medical Director of the Medical Division of the International Committee of the Red Cross, Secretary General of the International Society of Disaster Medicine.

6/ “Recommendations Made by the Panel of Commissioners Concerning Individual Claims for Serious Personal Injury or Death (Category ‘B’ Claims),” S/AC.26/1994/1, (the “first report“).

7/ “Decision Concerning the First Instalment of Claims for Serious Personal Injury or Death (Category ‘B’ Claims) Taken by the Governing Council of the United Nations Compensation Commission at its 43rd Meeting, held on 26 May 1994 in Geneva,” S/AC.26/Dec.20 (1994), (“Decision 20“).

8/ See also paragraphs 42-47 of the second report.

9/ Rules, article 41(1): “Computational, clerical, typographical or other errors brought to the attention of the Executive Secretary within 60 days from the publication of the decisions and reports, will be reported by the Executive Secretary to the Governing Council.“

10/ “Criteria for Expedited Processing of Urgent Claims,” S/AC.26/1991/1, (“Decision 1“).

1/ S/AC.26/1992/10.

2/ “Claims For Which Established Filing Deadlines Are Extended,” Decision Taken by the Governing Council of the United Nations Compensation Commission at its 29th Meeting, Held in Geneva on 27 September 1992,” S/AC.26/1992/12 (“Decision 12’).

3/ “Recommendations Made by the Panel of Commissioners Concerning Individual Claims for Serious Personal Injury or Death (Category ‘B’ Claims),* S/AC.26/1994/1 (the “first report’).

4/ “Report and Recommendations Made by the Panel of Commissioners Concerning Part One of the Second Instalment of Claims for Serious Personal Injury or Death (Category “B’ Claims),” S/AC.26/1994/4 (the “second report“).

5/ “Report and Recommendations Made by the Panel of Commissioners Concerning Part Two of the Second Instalment of Claims for Serious Personal Injury or Death (Category -B’ Claims),” S/AC/26/1995/1 (the “third report“).

6/ “Decision Concerning the First Instalment of Claims for Serious Personal Injury or Death (Category ‘B’ Claims) Taken by the Governing Council of the United Nations Compensation Commission at its 43rd Meeting, Held on 26 May 1994 in Geneva,” S/AC.26/Dec.20 (1994) (“Decision 20“).

7/ “Decision Concerning Part One of the Second Instalment of Claims for Serious Personal Injury or Death (Category ‘B’ Claims) Taken by the Governing Council of the United Nations Compensation Commission at its 48th Meeting, Held on 14 December 1994 in Geneva,” S/AC.26/Dec.26 (1994) (“Decision 26“) .

8/ “Decision Concerning Part Two of the Second Instalment of Claims for Serious Personal Injury or Death (Category ‘B’ Claims) Taken by the Governing Council of the United Nations Compensation Commission at its 51st Meeting, Held on 22 March 1995 in Geneva, “S/AC/26/Dec.27 (1994) (“Decision 27“) .

9/ See also paragraphs 42-46 of the second report.

10/ The 711 claim forms in the third instalment are comprised of 320 claims for serious personal injury and 402 claims for death. The total number of claims is higher than the number of claim forms since a claim form may include more than one loss.

11/ See pages 15-17 of the first report.

12/ Rules, article 41 (1): “Computational, clerical, typographical or other errors brought to the attention of the Executive Secretary within 60 days from the publication of the decisions and reports, will be reported by the Executive Secretary to the Governing Council.“

1 Security Council resolution 687, S/Res/687 (1991) (“resolution 687“).

2 Security Council resolution 692. S/Res/692 (1991) (“resolution 692“).

3 Article 37(e) provides that “[e]ach panel will report in writing through the Executive Secretary to the Governing Council on the claims received and the amount recommended to be allocated to each Government or other entity for each consolidated claim. Each report will briefly explain the reasons for the recommendations and, to the extent practicable within the time-limit, contain a breakdown of the recommendations in respect of individual claims with in each consolidated claim.” Decision 10 (S/AC.26/1992/10). For further discussion of the Rules, s$fi infra. Part

4 See Decision 1, para. 1 (S/AC.26/1991/1).

5 Rules, Article 32, para. 1. It is anticipated that a number of additional instalments will be necessary in order for the Panel to complete its review of all of the category “C claims received by the Commission. For further discussion, see infra.. Part in, section D.4.a.

6 Rules, Article 37(e).

7 Category “B” claims are claims for the payment of fixed amounts to any person who, as a result of Iraq's unlawful invasion and occupation of Kuwait, suffered serious personal injury, or whose spouse, child or parent died. The category “B” claims are another of the claim categories considered to be among the most urgent claims deserving expedited treatment.

8 See Decision 20, para. 6 (S/AC.26/Dec. 20 (1994)). The category “B” Panel determined that certain claimants had submitted their claims for “mental pain and anguish” on the wrong claim form: such claims should be submitted in category “C” rather than in category “B”. The “B” Panel requested the Executive Secretary to reallocate those claims to category “C”. See. Recommendations Made by the Panel of Commissioners Concerning individual Claims For Serious Personal Injury or Death (S/AC.26V1994/1) (the “B’ Recommendations“), at pp. 21-23. [34 I.L.M. 301-03 (1995)]

9 Resolution 687, pan. 16.

10 This Report contained the Secretary-General's plan for the creation of the Commission as a claims processing facility.

11 Resolution 692, para. 3.

12 Secretary-General's Report, at 20.

13 Id., at 10.

14 S/22885(1991).

15 Rules. Article 18, para. 1.

16 Rules, Articles 18,28 and 37-40.

17 Rules, Article 18, para. 1; and Article 32, para. 1.

18 Category “A” claims allow individuals or families to claim for fixed amounts for their departure from IraqKuwait daring the period of the invasion (2 August 1990 to 2 March 1991). Decision 1, paras. 10-11.

19 See Decision 3 (S/AC.2671991/3) and Decision 8 (S/AC.2671992/8). In Decisions 3 and 8, the Governing Council determined that claims tor MPA in the following categories may be compensated, provided that such losses are linked to Iraq's invasion and occupation of Kuwait: (a) A spouse, child or parent of the individual suffered death; (b) The individual suffered serious personal injury involving dismemberment, permanent or temporary significant disfigurement, or permanent or temporary significant loss of use or limitation of use of a body organ, member, function or system; (c) The individual suffered a sexual assault or an aggravated assault or torture; (d) The individual witnessed the intentional infliction of events described in (a), (b) or (c) above on his or her spouse, child or parent; (e) The individual was taken hostage or illegally detained for more than three days, or for a shorter period in circumstances indicating an imminent threat to his or her life; (f) On account of a manifestly well-founded fear for one's life or of being taken hostage or illegally detained, the individual was forced to hide for more than three days; (g) The individual was deprived of all economic resources, such as to threaten seriously his or her survival and that of his or her spouse, children or parents, in cases where assistance from his or her Government or other sources has not been provided.

20 In Decision 7, the Governing Council issued criteria for additional categories of claims, including claims for individual damages above US$100,000 (category “D” claims). (S/AC.26/1991A7/Rev.l).

21 See also Decision 1, paras. 14 and 15(b).

22 The Panel notes that there is also an affirmation for family claims, although category “C” normally is intended to provide relief to claims submitted by individuals: “I affirm that I am duly authorized to submit this claim by each family member on whose behalf I am making this claim.“

23 In particular, the Panel found most relevant for its recommendations the following decisions: Criteria for Expedited Processing of Urgent Claims. Decision 1; Personal Injury and Mental Pain and Anguish, Decision 3; Business Losses of Individuals Eligible for Consideration under the Expedited Procedures (S/AC.26/1991/4) (“Decision 4“); Determination of Ceilings for Compensation for Mental Pain and Anguish, Decision 8; Propositions and Conclusions on Compensation for Business Losses: Types of Damages and Their Valuation (S/AC.26/1992/9) (“Decision 9“); Decision 10 approving the Rules; Claims for Which Established Filing Deadlines are Extended (S/AC.26/1992/12) (“Decision 12“): Compensation for Business Losses Resulting from Iraq's Unlawful Invasion and Occupation of Kuwait where the Trade Embargo and Related Measures Were also a Cause (S/AC.26/1992/15) (“Decision 15“); and Awards of Interest (S/AC.26/1992/16) (“Decision 16“).

24 Rules, Article 34 (2).

25 For the Panel's discussion of evidentiary issues, Seeinfra. Part II, section E.

26 Decision 1, paras. 8 and para. 14.

27 Decision 1, para. 8.

28 Rules, Article 37(b) (“With respect to claims that cannot be completely verified through the computerized database, if the volume of claims is large, the Panel may check individual claims on the basis of a sampling with further verification only as circumstances warrant“).

29 Rules, Articles 37 (c) and (d). The Rules provide also for the possibility that the review of claims will not be completed within the time allotted Rules, Article 39. This Panel requested and received a two month extension for resolving the claims of the First Instalment

30 Rules, Art 37(c).

31 Rules, Article 36. Additional information can be requested from any source, including experts. However, requests by Commissioners for further written submissions or oral presentations are to be reserved for unusually large or complex cases.

32 See.“B” Recommendations, at pp. 12-23.

33 For a complete listing of the seven categories of MPA specified in Decision 3, see. supja n. 19.

34 For a listing of the losses appearing on each page of die category “claim form, see supra Part I. section R

35 “B” Recommendations, at pp. 12-13.

36 With respect to claims for personal injury or death of a family member under category “C”, the Panel agrees also with the following conclusions of the “6” Panel: Several claims were submitted for serious personal injury or death that occurred outside the relevant time period, where the cause of the injury or of the death could indeed be linked to the invasion. For example, in some instances an injury suffered during the period of the invasion and occupation of Kuwait was the cause of a death that occurred after 2 March 1991, or the lack of medical care in Kuwait during that period contributed to a serious personal injury or to a death occurring outside that time frame. The Panel has recommended compensation for such claims if satisfactory evidence of a link of the serious personal injury or death to the invasion or occupation of Kuwait was submitted. A particular issue arose in this context with respect to claims for losses that occurred outside the relevant time period in connection with mine explosions. The Panel had before it several claims for serious personal injury or death caused by the explosion of mines and other ordnance that occurred after 2 March 1991. According to a United Nations report, there were several million mines and other pieces of unexploded ordnance in Kuwait at the end of the occupation. That report stated that ‘the most lasting environmental problem facing Kuwait will be that of mines and other unexploded ordnance.’ Being aware of the long lasting effects of this problem, the Governing Council, in Decision 12, extended the deadline for the filing of claims for losses and personal injuries resulting from public health and safety risks that occurred after or just prior to the expiration of the established filing deadlines. The Panel interprets this Decision to mean that a claim for serious personal injury or death resulting from a mine explosion should be compensated even if that explosion occurred after 2 March 1991.

37 For example, the period of 2 August 1990 until 2 March 1991 sets a specific jurisdictional limitation for losses suffered as a result of “departure from or inability to leave Iraq or Kuwait (or a decision not to return) during that period.” Decision 1, para. 18. For further discussion on this issue Sfi£ infra, Part IV, section B.l.

38 Decision 3. for example, provides, with respect to MPA claims for hostage-taking, other illegal detention and forced hiding, that “all references to detention and hiding are understood to mean detention and hiding within Iraq or Kuwait” In addition, claims for real property losses (on page “C7” of the claim form) raise separate considerations. While there is no jurisdictional proscription against claims for losses to real property located outside of Iraq or Kuwait, the Panel expects that such losses would be relatively rare, and therefore losses on page “C7” would be normally confined to real property located in Iraq or Kuwait. For further discussion, see. infra Part IV, section B.

39 See also “B” Recommendations, at p. 14.

40 Article 14, para. 1(c) states that a Government submitting claims must affirm “that, to the best of the information available to it, the claimants are its nationals or residents, and that it has no reason to believe that the information stated in the claims is incorrect.“

41 For a discussion of the“B” Panel's conclusions in regard to this issue, see. “B” Recommendations, at pp.14

42 Decision 12, para. 1(b).

43 14 Decision 12, paragraph 2 provides: When die Executive Secretary determines that die processing of all remaining claims before the panels of Commissioners is likely to take no more than one year to complete, he should so notify the Governing Council. The Governing Council should thereupon establish the final time limit for the submission of claims covered by paras. 1(a) and 1(b) of this decision. The Governing Council should establish the final time limit at its next meeting after receiving such notification and should allow at least three additional months from the date of its decision for die filing of the claims.

44 Id

45 Decision 1, para. 14.

46 Report submitted by the Executive Secretary to the Governing Council in Accordance with Article 16 of the Provisional Rules for Claims Procedure (Report No. 4) (S/AC.26/1993/R. 16) (“Article 16 Report“).

47 Of course, it follows from this definition of family that claims put forward by other relatives such as brothers or sisters, grandchildren, grandparents, nieces, nephews or uncles and aunts of the deceased or injured person would be excluded.

48 “B” Recommendations, at pp. 19-20.

49 Decision 1, para. 5.

50 Resolution 687, para. 16.

51 Decision 15.

52 Decision IS, para. 3, re-emphasizes that there are two essential elements to admissible losses: “such losses must be the result of Iraq's unlawful invasion and occupation of Kuwait” and “the causal link must be direct.“

53 For a listing of the losses on the category “C” claim form, SSSS1IBI3 Part I, section B.2.

54 For a listing of the MPA categories on the category “C” claim form, S££ sjipja n. 19.

55 Decision 4, in relevant part, elaborates the following examples: “(g) Preventing access, removal, looting and destruction are examples of circumstances under which business losses may have occurred. (h) Premises, equipment and stock are examples of business property whose loss may be claimed. (i) Damage to intangible assets, lost business revenues and losses in connection with contracts may only be claimed if they are a direct loss resulting from Iraq's invasion and occupation of Kuwait“

56 This provision is a reference to losses and injuries caused by the explosion of mines and other ordnance.

57 Decision 1, para. 16.

58 Decision 9.

59 Decision 15, para. 3.

60 H. Fox, “Reparations and State Responsibility: Claims Against Iraq Arising Out of the Invasion and Occupation of Kuwait, in: The Gulf War 1990-91,” International and English Law,261, p. 275 (P. Rowe, ed., 1993).

61 B. Cheng, General Principles of Law as Applied by International Courts and Tribunals,p. 243 (reprint 1987).

62 E. Riedel, Damages, in Encyclopedia of Public International Law,68, p. 70 (R. Bernhardt, ed., 1987).

63 This standard tracks the language of Decision 1, paragraph 15. providing that category “C” claims must be documented by appropriate evidence of the circumstances and the amount of the claimed loss. The evidence required will be the reasonable minimum that is appropriate under the circumstances involved, and a lesser degree of documentary evidence would ordinarily be required for smaller claims, such as those below $20,000.

64 Thus, there is a gradation in the requirement of evidence for category “C” claim losses, in relation to the amount claimed. The Governing Council, in Decisions 1 and 7, established further gradations in the evidentiary requirements for different categories of claims, setting more relaxed standards for claims in categories “A”, “B” and “C” (urgent claims) than for claims in categories “D,” “£” and “F.“

65 In this connection, the governments have also provided the following affirmation: “to the best of the information available to [the government], the claimants are its nationals or residents and that it has no reason to believe that the information stated in the claims is incorrect” Rules. Article 14(c).

66 In this regard, the Panel also took into account the affirmations provided by governments. S£S SUEI3. n. 65.

67 information provided such as civil identification numbers issued by Kuwaiti authorities, or residency permit numbers issued by Iraqi authorities, lend themselves to further verification of the claimant's identity and presence in one of these two countries prior to, or during, the invasion.

68 Decision 1, para. 15.

69 See; Part IV, section B, infra.

70 For a discussion of the presentation of the claims, see infra. Part HI. section D.3.

71 For further discussion of background on national claims programmes. see.infi2, n. 113 and accompanying text

72 “B” Panel Recommendations, at p. 34.

73 Sandifer, Durward D., Evidence Before International Tribunals,Revised Edition (1975), at p. 22.

74 A reference in this context may also be made to the Study Concerning the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms (2 July 1993), presented by Theo van Boven, the Special Rapporteur appointed by the Sub-Commission on Prevention of Discrimination and Protection of Minorities of the United Nations Commission on Human Rights. In discussing certain guidelines concerning reparations to victims of gross violations of human rights, the Study, at para. 137, states: Administrative or judicial tribunals responsible for affording reparations should take into account that records or other tangible evidence may be limited or unavailable. In the absence of other evidence, reparations should be based on the testimony of victims, family members, medical and mental health professionals.“

75 See., in particular. Decisions 1,7 and 8.

76 The decision to process and pay claims by reference to the dollar may have been guided mainly by two considerations of a practical nature. First, for mass claims processing purposes, it may be more efficient to convert all amounts involved into a single currency. Second, the Fund, created by paragraph 18 of Security Council resolution 687, from which successful claims are to be paid, is expected to receive most of its income in dollars.

77 The issue also applies to claims put forward in dollars on the basis of conversion by the claimants themselves of other currencies at rates different from that applied by the Commission.

78 Often, it is considered that the date used for conversion should depend on whether the currency of the loss has appreciated or depreciated relative to the currency of payment. In general, if the currency of the loss has depreciated since the injury or breach, judgment should be given at the rare of exchange applicable on the date of injury or breach: if the currency of the loss has appreciated since the injury or breach, judgment should be given at the rate of exchange applicable on the date of judgment or the date of payment. Alternatively, one could summarize that the conversion should be made at whichever date would serve the ends of justice under the circumstances. See. Gold, Joseph. The Restatement of the Foreign Relations Law of the United States (Revised) and International Monetary Law,The International Lawyer,Vol. 22, no. 1 (1988), p. 25.

79 Lillich, Richard B., International Claims: Postwar British Practice,

80 The possibility that those claims may relate to damages incurred in different currencies introduces yet another variable.

81 Apart from the practical arguments explained, there is ample precedent within the Commission's processing system for the use of a method that implies a certain level of abstraction. Consider, for example, the Governing Council's determination of fixed sums and ceiling amounts.

82 Not only those filed by Kuwaiti nationals, but also those filed by claimants of all other nationalities.

83 Decision 16.

84 Id, at paras. 2-3.

85 Id

86 Rules, Article 6.

87 In accordance with Decision 1, para. 19, the Governing Council may request an appropriate person, authority or body to submit claims on behalf of persons who are not in a position to have their claims submitted by a Government. For example, the United Nations Development Programme and the United Nations High Commissioner for Refugees have submitted claims on behalf of individuals.

88 Rules, Article 11(1).

89 Id Article 13.

90 14, Article 15.

91 Id.

92 Id., Article 16, para. 1: The Executive Secretary will make periodic reports to the Governing Council concerning the claims received. These reports shall be made as frequently as required to inform the Council of the Commission's case load but not less than quarterly. The reports shall indicate: a) Governments, international organizations or other eligible parties that have submitted claims; b) the categories of claims submitted; c) the number of claimants in each consolidated claim; d) the total amount of compensation sought in each consolidated claim. In addition, each report may indicate significant legal and factual issues raised by the claims, if any. As of August 1994, the Executive Secretary has issued eight reports pursuant to Article 16 of the Rules.

93 The First Instalment consists of those claims that were filed as of September 30, 1992, the last day of the reporting period covered by the first Article 16 Report. It also contains the claims that were transferred from category “B” to “C, see. sups. n. 8 and accompanying text.

94 Rules, Article 16, para. 3: Within 30 days in the case of claims in Categories A, B and C of the circulation of the Executive Secretary's report, the Government of Iraq as well as Governments and international organizations that have submitted claims, may present their additional information and views concerning the report to the Executive Secretary for transmission to panels of Commissioners in accordance with Article 32, There shall be no extensions of the time-limits specified in this paragraph.

95 The database and data capture system for category “C” claims were designed with the assistance of computer consultants retained by the secretariat for this purpose. The system permits the capture of the factual information from the claims, as well as the evidentiary items submitted in support of particular losses, and also enables the secretariat to group the claims according to the loss elements and issues considered to be relevant to their disposition.

96 When processing category “A”, “B” and “D” claims, the secretariat also runs computer and manual checks to verify whether an individual who is claiming under category “C” has also claimed under one of these other categories. If so, then the appropriate review, determination and deductions, if any, will be made. Sss 1003 for further discussion. Part IV, section A.4.

97 Article 32 of the Rules provides that the Executive Secretary will submit to the Panel the claims “together with the related documentation, containing the results of the preliminary assessment made by the Secretariat and any other information deemed to be useful for the work of the Commissioners, as well as the additional information and views submitted [by Governments or other authorized entities] in accordance with Article 16” of the Rules

98 The preparation of the claims by the “C unit included, inter alia, the selection and distribution of sample claims; translation of relevant documents; development and filling-in of “sample claim-summary sheets” for each of the loss elements on the category “C” claim form.

99 Rules. Article 30. para. 2: and Article 33. para. 2.

100 Decision 1, para. 8; See also Rules, Article 37(b).

101 An example of the Panel's reliance on experts is in relation to claims for MPA. The Governing Council in Decision 8 established limits on compensation for seven categories of MPA. The Council mandated that for five of the seven situations, ceilings rather than fixed amounts should be used in determining the level of compensation. The expectation of the Council, therefore, was that the Panel would apply some differentiating criteria to determine whether claims falling within one of these five categories should receive the ceiling amount or a lower sum. During consultations with the secretariat, the Panel requested expert assistance to determine whether criteria could be developed that could be applied to the various types of MPA claims put forward by claimants. Accordingly, a panel of experts was convened representing disciplines such as psychiatry, psychology, general medicine, and war and disaster medicine. Following meetings in March 1994. a comprehensive report containing the requested “trauma-related'’ criteria was produced. This report was provided to the Panel for review and the criteria proposed therein, with several minor changes, was adopted by the Panel. The “Report of the Panel of Experts Appointed to Assist the United Nations Compensation Commission in Matters Concerning Compensation for Mental Pain and Anguish” (the “MPA Report“) is attached at Annex VI.

102 Rules. Article 31

103 The deadline for submission of category “C” claims to the Commission expired on 1 January 1994. Annexl shows that, as of 2 August 1994, the Commission has received notice of the filing of more than 415,000 category “C” claims. Although the deadline for submitting “C” claims has passed, additional submissions are expected.

104 Decision 1, para. 8.

105 By way of further examples, for category “C” loss elements in which the number of claims is relatively small, or, in another context, where the causal relation to Iraq's invasion must be closely evaluated, a claim-by-claim review may be the appropriate methodology to employ.

106 In the development of its approaches, the Panel has had the benefit of the assistance of Francis E. McGovern, Professor at the University of Alabama School of Law and expert in the trial of mass torts. For a more detailed overview of some of the issues described in this section, see. Gibson, C.S., “Mass Claims Processing: Techniques for Processing Over 400,000 Claims for Individual Loss at the United Nations Compensation Commission”, in The United Nations Compensation Commission(R. Lillich, ed.. Thirteenth Sokol Colloquium at the University of Virginia, 1994).

107 See eg,, D. Bederman, “Historical Analogues of the U.N. Compensation Commission”, in The United Nations Compensation Commission(R. Lillich, ed.. Thirteenth Sokol Colloquium at the University of Virginia. 1994) (hereinafter “Historical Analogues“), and Garmise, “The Iraqi Claims Process and the Ghost of Versailles, 67 N. Y. U. LRev, 840,848 (1992) (the authors discuss a number of the following claims commissions: tribunal established under the Jay Treaty of 1794, issued 536 awards; United States-Mexico Claims Commission, created in 1868, considered more than 2,000 claims; claims settlement between Great Britain and the United States of August 1910; claims settlement between Poland and Germany, established under the Geneva Convention of May 1922, decided more than 10,000 claims; United States-Mexico Claims Commission, established by the Conventions of September 1923; United States- German Mixed Claims Commission, established by the Agreements of August 1922 and December 1928. disposed of 20,433 claims, rendering awards in over 7000 instances; Franco-German Arbitral Tribunal and Anglo-German Arbitral Tribunal, adjudicated 20,000 and 10,000 claims, respectively; United Nations Tribunal for Libya, established by the Treaty of Peace between the Allies and Italy of 1947: Iran-United States Claims Tribunal, established in January 1981, began with a docket of nearly 4,000 claims and has adjudicated hundreds of these to date, most of the other cases having been settled).

108 Historical Analogues, at pp. 16-17.

109 Id, (quoting Mixed Claims Commission. United States and Germany, Rules of Procedure, article VJJ, para, c (adopted 15 Nov. 1922),ispjinlfidin 8 R. Int'l Arb. Awards,469. 473).

110 id.

111 See.eg Cimino v. Raymark Industries,751 F. Supp. 649 (E.D. Tex. 1990); Hawkinson v. AM. Robins Co., Inc.595 F Supp. 1290 (1984) (the “Dalkon Shield” litigation). For general discussion of mass processing techniques, see also McGovern, R, “Resolving Mature Mass Tort Litigation”. 69 Boston Univ. L Rev.659 (1989); Saks, M.&Blanck. P., “Justice improved: The Unrecognized Benefits of Aggregation and Sampling In The Trial of Mass Torts”, 44 Stanford L Rev.815 (1992); sL,Bone. R., “Statistical Adjudication: Rights, Justice, and Utility in a World of Process Scarcity,” 46 Wand. L Rev.561 (1993). As regards the Dalkon Shield litigation, one commentator has noted in regard to mass claims methods used in Dalkon Shield, that statistical sampling methods can be effectively used to compile claims data regarding causation as well as information about losses suffered by the victim class… [S]uch data enable extrapolation of an accurate, comprehensive, and refined matrix of compensation categories. On McGovem's account, the sampling methods, databases, and resulting payment schedules developed in the asbestos and Dalkon Shield cases satisfied all practical measures of fairness and efficiency. This news enhances the attractiveness of collective processes generally and class actions in particular. Rosenberg, D., “Of End Games and Openings In Mass Tort Cases: Lessons From A Special Master”, Boston Univ. L Rev.695, 696(1989).

112 See “Justice Improved: The Unrecognized Benefits of Aggregation and Sampling In The Trial of Mass Torts”, 44 Stanford L. Rev. at 851.

113 A number of claimant governments have well developed and organized national claims programmes providing for a careful review of the claims, and, in some cases, for verification of the losses contained therein. In addition, some of these governments have provided covering briefs discussing the general factual and legal considerations that are relevant to the individual claims they have submitted. Other governments, however, apparently have served only as a forwarding service for their claimants. Claims which they have received have been subjected to little or no review, but merely have been sent to the Commission for filing.

114 For a further description of this operation, see. infra, Part IV. section A.3.

115 The principal loss elements distinguished under category “C” are as follows, listed by page on the “C” claim form: “CI“: claims for departure-related expenses claims for relocation-related expenses claims for MPA for hostage-taking or other illegal detention for more than three days claims for MPA for hostage-taking or other illegal detention for three days or less claims for MPA for “forced hiding” “C2“: personal injury claims for medical expenses personal injury claims for related MPA claims for MPA for witnessing the serious personal injury of a family member “C3“: claims for death of family member that include medical or burial expenses claims for death of a family member that include losses of support income claims for death of a family member for related MPA claims for MPA for witnessing the death of a family member “C4“: claims for personal property losses (excluding motor vehicles) claims for motor vehicle losses where the claim is for total value of the vehicle claims for motor vehicle losses where the claim is for repair costs “C5“: bank losses claimed against Kuwaiti banks bank losses claimed against Iraqi banks securities losses “C6“: salary and wages claims employment-related support claims claims for related MPA “CI“:real property claims for damages real property claims for loss of rental income “C8“: individual business claims

116 See Supra n. 5 and accompanying text.

117 As Annex Iillustrates, the countries from which the Commission has received more than 2,000 category “C” claims are Bangladesh, Egypt, India, Iran, Jordan, Kuwait. Lebanon, Pakistan, Philippines, Somalia, Sri Lanka, Sudan, Syria, United Kingdom,, United Sates, and Yemen. To facilitate the implementation of a processing system that relies on sampling techniques to develop claims evaluation criteria, it will be important to ensure that claims from each of these countries, if not already included in die First Instalment, are represented in later instalments during the precedent phase.

118 This approach to processing the claims is in accordance with the guidelines in the Rules. Claims in each instalment are to be grouped “according to, inter alia, the type or size of the claims and the similarity of legal and factual issues,” to “facilitate the work of Commissioners and to ensure uniformity in the treatment of similar claims.” Sff£ Rules, Article 17.

119 See Supra, n. 8 and accompanying text

120 Specifically regarding the formal requirements. Article 14 states in pertinent part: The Secretariat will make a preliminary assessment of the claims received in order to determine whether they meet the formal requirements established by the Governing Council. To this end the Secretariat will verify:b) that the claims contain the names and addresses of the claimants and. where applicable, evidence of the amount, type and causes of losses; c) that the affirmation by the Government has been included in respect of each consolidated claim stating that, to the best of the information available to it, the claimants are its nationals or residents, and that it has no reason to believe that the information stated in the claims is incorrect: d) that all required affirmations have been given by each claimant Article 15 of the Rules, a related provision, provides that: If it is found that the claim does not meet the formal requirements established by the Governing Council, the Secretariat will notify the person or body that submitted the claim about that circumstance and will give it 60 days from the date of that notification to remedy the defect If the formal requirements are not met within this period, the claim shall not be considered as filed.

121 Onthe'CSig” page of the claim form claimants arc required to sign an affirmation that states: “I hereby affirm that the information in this claim is correct. (For family claims: I affirm that I am duly authorized to submit this claim by each family member on whose behalf I am making this claim).“

122 The Kuwait Public Authority for Civil Information database, a copy of which was provided to the Commission, keeps records of all persons that were legally resident in Kuwait, whether of Kuwaiti nationality or not

l23 The “Instructions for Claimants” on claim form “A” state that “[t]his form is applicable only to those who departed from Iraq or Kuwait during the period of 2 August 1990 to 2 March 1991 as a result of Iraq's unlawful invasion and occupation of Kuwait.“

124 In this regard, on claim form “A” claimants are instructed as follows: If you had to depart from Iraq or Kuwait during the period of 2 August 1990 to 2 March 1991, you may use this form to claim through your Government for a fixed lumpsum of Two thousand five hundred U.S. DOLLARS (U.S.J2.5O0). If other members of your family (as defined below) are also claiming for departure, all such family member claims should be submitted on a single claim form. No more than FIVE THOUSAND U.S. DOLLARS (US$5,000) will be paid under this form for departure with respect to any one family consisting of any person and his or her spouse, children and parents.

125 The asterisks refer to a note on the instruction page of the “B” claim form which states: “Either Claim Form “C” (Individual Claim Forms for Damages up to U.S.S100.000) or Claim Form “D” (Claims of Individuals Not Otherwise Covered).“

126 Decision 13, para. 3(b) states: “When the Commission learns, either through information provided by the claimant or through other means, and before paying compensation from the Fund, that a claimant in categories “C”, “D”, “E”, and “F’ has received compensation elsewhere for the same loss, the amount already received will be deducted from the compensation to be paid from the Fund to that claimant for the same loss.“