 I.
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CONSIDERATIONS |
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Background
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Each of the Claimants submitted a claim to the Account of the Company. The Bank holding the Account and the Claimants (together, "the Parties") each signed a Claims Resolution Agreement, thereby agreeing that the claims be resolved by the Tribunal in accordance with the Rules. Judge Hadassa Ben-Itto was subsequently appointed as Sole Arbitrator to resolve the claims to this Account.
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On 3 August 1999, the Sole Arbitrator rendered a First Order ("the Order"). In the Order, the Sole Arbitrator determined that in light of allegations made by Claimant 3 and pursuant to Articles 4 (ii) and 13 (i) (c) of the Rules, the claims to this Account should be referred to a Claims Panel. Subsequently, Professor Dr. H. M. Riemer, the Chairman of the Tribunal, appointed himself as Chairperson, and Judge Thomas Buergenthal and Judge Hadassa Ben-Itto as Co-Arbitrators in this matter. The Chairperson and the Co-Arbitrators hereby accept the Appointment and declare that they are independent of each of the Parties and intend to remain so throughout the proceeding. This Partial Award is subsequent to the Order.
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In the Order, the Claimants were invited to submit any further information they may have regarding:
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their entitlement to the Account; |
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the claims of the other Claimants, details of which were set out in the Order; |
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the documents provided by the Bank that were enclosed with the Order; and |
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the history and fate of the Company, including when it was founded; when and how it changed ownership; and what its status is at present. |
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Additionally, the following information was requested of the individual Claimants:
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Claimant 1
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Any information on the history of the Company, especially in relation to the substance of the claim of Claimant 3; |
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Information as to whether the father of Claimant 1 was the original founder of the Company, or alternatively, details regarding the purchase and ownership transferal of the Company from its previous owners; and |
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Any further information regarding the reason Claimant 1 believes that the assets in the Account might contain her father's personal dividends from the Company, rather than assets owned by the legal entity, the Company. |
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Claimant 2
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Any information as to the reason that in his capacity as the receiver of F.-H. GmbH&Co, he would be entitled to assets of the Company, deposited in 1944. |
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Claimant 3
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Any documentation regarding the Company which mention his father, A. M., and/or his uncle, E. M., and especially, any indication that his father and uncle might have had an ownership interest in the Company; and |
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Further information or documentation, which may exist, regarding the transferal of the Company from his father and uncle to Mr. H. |
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Claimant 4
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Any information on the history of the Company, especially in relation to the substance of the claim of Claimant 3; |
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Information as to when and how the father of Claimants 4 became a shareholder of the Company. Additionally, information as to whether the father of Claimants 4 was the original founder of the company, or alternatively, details regarding the purchase and ownership transferal of the Company from its previous owners; |
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Any information on the fate of the Company in response to the substance of the claim of Claimant 2; and |
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Any further information regarding the reason that Claimants 4 believe that their father had a personal interest ownership to the Account of the Company, as the position of executive director of a company does not, in itself, indicate that the director has any entitlement to the assets of that company. |
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Additionally, the Bank was invited to submit any comments regarding any matters set out in the Order.
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Responses to the Order
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By letter dated 3 September 1999, the representative of Claimant 1 advised the Tribunal that Claimant 1 wished to withdraw her claim to the Account. Accordingly, the Claims Panel has rendered a Closing Order regarding the claim of Claimant 1 and it will not be addressed in this Award.
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As of the date of this Partial Award, the Tribunal has not received any response to the Order from Claimant 2. On 22 March 2000, Ms. Judith Meisels, the Legal Secretary assigned to this claim, telephoned Claimant 2 and was informed that he has nothing further to add in response to the Order. Therefore, as indicated in the Order, the Claims Panel will decide the claim of Claimant 2 based on the information before the Tribunal.
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By letter dated 31 August 1999, Claimant 3 responded to the Order. In his response, Claimant 3 stated that his uncle, E. M., founded the Company in 1919, and his father, A. M., joined the firm in 1921 as a General Manager and thereafter in 1928, became the owner of 50% of the shares of the [C]ompany. Claimant 3 further stated that the Company was unlawfully taken over from his father and uncle by Mr. H., one of the Power of Attorney Holders, for the reasons mentioned in his claim form, and the [C]ompany has not been in business since the end of the Second World War. Claimant 3 further stated that he had no additional comments to make with regard to the claims of Claimants 1,2 and 4. Enclosed with the response, Claimant 3 submitted a booklet, dated 31 December 1938 and containing the balance sheet and financial statement of the Company. This document contains information regarding the Company, such as its full name and the address of its head office and eleven branch offices. It further indicates that the Manager of the Company is L. K. (according to Claimant 3, his great uncle) and mentions E. M. and A. M., the father and uncle of Claimant 3 as other members of the Company, as well as the Claimant's father, A. M., as its General Director. The balance sheet further indicates that the balance of the Company's assets as of December 1938 were estimated at the approximate of XX Lei. The Claims Panel notes that the name of the father of Claimants 4 does not appear anywhere in this document relating to the Company. Claimant 3 also submitted a "Memorandum of Understanding" signed by his sister, and granting him power of attorney to represent her claim before the Tribunal.
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As of the date of this Partial Award, the Tribunal has not received any response to the Order from Claimants 4. On 22 March 2000, Ms. Judith Meisels, the Legal Secretary assigned to this claim, phoned the representative of Claimants 4 and was informed that his clients have nothing further to add in response to the Order. Therefore, as indicated in the Order, the Claims Panel will decide the claims of Claimants 4 based on the information before the Tribunal.
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By letter dated 31 August 1999, the Bank responded to the Order. In its response, the Bank stated that it has nothing further to add to its submissions.
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The Bank Records and The Account
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The Bank produced copies of the following documents, which were provided to the Claimants, and which contain information regarding the Company which the Tribunal compared against information provided by the Claimants:
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A note, dated 28 January 1944, indicating that a security deposit and a current account had been opened on that day and that if the security deposit was sold, a coded message should be telegraphed; |
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A power of attorney, dated 9 October 1943, signed by H. H., as executive of the Company, granting power of attorney to his son, R.H. H. H.'s business card is at the bottom of this page; |
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An agreement, dated 28 January 1944, between the Company and the Bank, regarding the opening of the Account. The agreement grants power of attorney to H. H., A. H. (née P) and R. H.; and |
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Account statements dated between 1945 and 1997. |
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The Bank has submitted that the Account is dormant and identified the assets in the Account as 9.60 Swiss Francs as of 26 February 1998. The Claims Panel has not verified the amount reported by the Bank. However, the Sole Arbitrator has informed the Claimants that upon initial review, the Bank records indicate that as of 1945, the balance of the Account was 6, 212.00 Swiss Francs, and since then the sum was regularly decreased by what appear to be bank fee deductions. The Claimants were further informed that the principal amount may be adjusted, and compensation for unpaid interest and previously deducted bank fees may be added, on the basis of Guidelines to be established by the Board of Trustees.
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Since the issue of the First Order, the Board of Trustees of the Independent Claims Resolution Tribunal has established the Guidelines on Interest and Fees and provided that special interest and bank fees are to be added to accounts open or opened between 1933-1945 by a Victim or Target of Nazi persecution. A Victim or Target of Nazi persecution has been defined as any person or entity persecuted or targeted for persecution by the Nazi Regime because they were or were believed to be Jewish, Romani, Jehovah's Witness, homosexual, or physically or mentally disabled or handicapped.
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Summary of the Claims
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For a claim in the Ordinary Procedure to be approved, the Claimant must show that it is plausible in light of all the circumstances that he or she is entitled, in whole or in part, to the Account. Additionally, before rendering an award to a claimant, the Claims Panel must determine that no other persons may have an identical or better claim to the dormant account. In making this finding of plausibility, the Claims Panel must assess all information submitted by the Parties or otherwise available to it. The Claims Panel must also bear in mind the difficulties of proving a claim, given the destruction of the Second World War and the Holocaust and the length of time that has lapsed since the opening of the Account.
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Claimant 3 states that he and his sister are entitled to the Account as the sole heirs of the original founders and owners of the Company, which was seized during the Nazi regime. Claimant 3 further states that he and his relatives are entitled to the assets in the Account, as the assets are the remnant, saved by means of a Swiss Bank Account, of the large worth of the Company.
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Regarding the identification of the Company, Claimant 3 has provided many documents identifying the Company including, stationery headed [Company Name] and a booklet enclosed with the Claimant's response to the Order, which mentions the precise unpublished address of the [C]ompany's head office, as mentioned by Claimants 4 in their submissions. In light of the detailed information provided by Claimant 3, the Claims Panel finds that Claimant 3 has correctly identified the Company, the owner of the Account.
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Regarding the entitlement of Claimant 3 to the Account, Claimant 3 states that the Company was founded and owned by his father, A. M., and his uncle, E. M.. Claimant 3 further states that the M. families escaped the Nazis and the Iron Guard by fleeing Romania in 1941. Prior to their escape, Claimant 3 states that his father and uncle were dismissed from the Company by the Romanian government for being Jewish and in 1940, the Company and its assets were unlawfully and forcefully taken over in return for only a paltry sum, by a man named H., one of the published Power of Attorney Holders. The Claimant has evidenced this allegation with a list published in the Romanian newspaper, containing names of Jews fired by the Romanian government from their respective companies. This list mentions the names of the father and uncle of Claimant 3 as persons fired from "[Company Name], S.A., Bucharesti". Regarding his entitlement to the assets of his father and uncle, Claimant 3 provides documents which demonstrate his relationship and right of inheritance to his father's assets, such as his father's death certificate, and a sworn statement from his mother. The Claims Panel invited the Claimants, and especially Claimants 4, to address the allegation that the Company was unlawfully taken over in 1941, thus questioning the legal possession of its assets by its new owners. However, Claimants 4 chose not to submit a response to the Order. Based on the information provided by Claimant 3, which was not refuted by any of the other Claimants, and based on the fact that as of September 1940, a fascist government, made up of Iron Guard members, army officers and Nazi elements, was set up in Romania, the Claims Panel finds it plausible that the assets of the Company, including those deposited in the Account, were looted from the M. family. Moreover, this finding is supported by Article 15 of the Rules, which was intended to prevent awarding assets to persons responsible for looting them, and if possible, to return the assets to the victims.
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Accordingly, the Claims Panel finds that it is plausible, in light of all the circumstances, that Claimant 3 and his sister are entitled to the assets in the Account. The Claims Panel also notes there is no information before the Tribunal that might suggest that there are other persons with identical or better claims to the Account. Finally, the Claims Panel must also have no reason to believe that the Account Holder may have acted as an intermediary for a victim of Nazi persecution or that the Claimant may have submitted a fraudulent claim. The Claims Panel is satisfied that all of these criteria are met in the present case.
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Regarding the claims of the other Claimants, the Claims Panel finds that they have not provided information or documents that plausibly establish that they are entitled to the assets in the Account.
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Claimant 2 bases his claim on the allegation that as the receiver of a company named F.-H. GmbH&Co, which in 1991 became the legal successor of the "H.H. Spediteur" a company solely owned by H.H., the Power of Attorney Holder of the Company, he is entitled to any assets of the Company. Claimant 2 has managed to identify the Power of Attorney Holders over the Account, by providing unpublished details regarding their identity, such as the unpublished addresses of H. H. and the maiden name of his wife, both matching information provided by Claimant 1. Claimant 2 also provides a court declaration, dated 30 June 1941, in which H. H. states that he is the sole owner of the firm, "H. H. Spediteur". However, the fact remains that Claimant 2 has not established any direct connection to the Company or to its assets. In the Order, Claimant 2 was informed of the weakness of his claim and was requested to provide further information as to the reason in his capacity as the receiver of F.-H. GmbH&Co, he would be entitled to assets of the Company, deposited in 1944. However, Claimant 2 did not provide any reply to the Order. Thus, the Claims Panel finds that Claimant 2 has not established a claim of entitlement to the Account.
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Claimants 4, who are siblings, base their claim of entitlement to the Account on their allegation that they are the sole surviving heirs of their father, J. E., who was a member of the management of the Company and an equal shareholder along with H. H., the published Power of Attorney Holder. Claimants 4 state that H. H. did not have any descendants and thus, they are entitled to the full amount in the Account. Claimants 4 provide the unpublished dates of death of the Power of Attorney Holders, which precisely match information provided by Claimant 1 who has clearly identified the Power of Attorney Holders as her immediate family members. Thus, it is apparent that Claimants 4 have identified the Company.
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Regarding the entitlement of Claimants 4 to the Account, while they have identified a connection between their father and the Company, by providing company resolutions mentioning J. E. as executive director and secretary of the Company, notwithstanding the issues addressed to them in the Order, Claimants 4 have not submitted any information which would explain why their father, a director of a company, might have legal entitlement to the assets of that company. Moreover, even if the father of Claimants 4 has some legal entitlement to the assets in the Account, that entitlement would nonetheless be nullified on the basis of Article 15, as detailed above.
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II.
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PARTIAL AWARD |
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Based on the submissions of the Parties and the above considerations, and in accordance with the Rules, the Claims Panel renders the following Partial Award:
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1.
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The Claims Panel recognizes that Claimant 3 and his sister, who has granted Claimant 3 power of attorney to represent her claim to the Account, have a valid claim to the assets contained in the Account and orders the Bank to pay to or at the direction of the Claimant 9.60 Swiss Francs, being the amount reported by the Bank on 25 August 1998. In making this payment, the Bank will not assess any fees. |
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The Claims Panel finds that Claimant 2 and Claimants 4 have not shown that they are plausibly entitled, in whole or in part, to the assets in the Account. Accordingly, their claims to the Account are denied. |
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As noted in the Order, the Bank records show that as of 1945, the balance of the account was 6,212.00 Swiss Francs. Since then, the sum was regularly decreased by what appear to be bank fee deductions. The Claims Panel determines that in the Final Award, compensation for special interest and bank fees previously deducted will be added on the basis of Guidelines established by the Board of Trustees of the Independent Claims Resolution Foundation. |
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This Partial Award will be sent to the Parties by registered mail against receipt. |
30 March 2000
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| Chairperson |
Co-Arbitrator |
Co-Arbitrator |
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[signature] |
[signature] |
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| Prof. Dr. H.M. Riemer |
Judge Thomas Buergenthal |
Judge Hadassa Ben-Itto |
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