 I.
|
CONSIDERATIONS |
|
Claims
|
|
The Claim of Claimant 1
|
|
On 25 November 1997, the 1st Claimant submitted a claim to the Account of the Account Holder (the "Account"). The Bank holding the Account declined to disclose its name and the amount in the dormant account to the 1st Claimant and the claim was then forwarded to the Tribunal. On 27 November 1998, the Rt. Hon. The Lord Higgins, as a Sole Arbitrator of the Tribunal, decided in an Initial Screening Procedure, that the name of the Bank and the amount in the Account be disclosed to the 1st Claimant.
|
|
The Bank and the 1st Claimant each signed a Claims Resolution Agreement, thereby agreeing that the claim will be resolved by the Tribunal in accordance with the Rules.
|
|
The Claim of Claimant 2
|
|
On 20 January 1998, the 2nd Claimant submitted a claim to the Account. The Bank agreed to disclose its name and the amount in the Account to the 2nd Claimant. The Bank holding the Account and the 2nd Claimant each signed a Claims Resolution Agreement, thereby agreeing that the claim will be resolved by the Tribunal in accordance with the Rules.
|
|
The Claim of Claimant 3
|
|
On 24 March 1998, the 3rd Claimant submitted a claim to the Account. The Bank holding the Account declined to disclose its name and the amount in the dormant account to the 3rd Claimant, and the claim was then forwarded to the Tribunal. On 27 November 1998, the Rt. Hon. The Lord Higgins, as a Sole Arbitrator of the Tribunal, decided in an Initial Screening Procedure, that the name of the Bank and the amount in the Account be disclosed to the 3rd Claimant.
|
|
The Bank and the 3rd Claimant each signed a Claims Resolution Agreement, thereby agreeing that the claim will be resolved by the Tribunal in accordance with the Rules.
|
|
The Claim of Claimant 4
|
|
On 24 March 1998, the 4th Claimant submitted a claim to the Account. The Bank agreed to disclose its name and the amount in the Account to the 4th Claimant. The Bank holding the Account and the 4th Claimant each signed a Claims Resolution Agreement, thereby agreeing that the claim will be resolved by the Tribunal in accordance with the Rules.
|
|
The Order
|
|
The Claims Panel was subsequently appointed to resolve the claims to this Account. It issued its First Order on 24 February 1999 ("the Order").
|
|
In the Order, the Claimants were invited to submit their comments, if any, with respect to the Family Tree provided by the Claims Panel, that had been prepared based on the Claimants' submissions. The Claimants were also invited to submit their comments, if any, on the documents and submissions furnished to them with the Order. Further, the Claimants were invited to indicate, if known, the nationality of the Account Holder and of his immediate family and to furnish the Tribunal any documents relevant to the determination of their respective entitlements to the Account, such as wills or other documents showing the distribution of the estates of the Account Holder and his spouse, A. (née F.) V.
|
|
The Bank was invited to submit any further comments or submissions it wished to make and to provide a list of the contents of securities account number X and state their value.
|
|
Responses to the Order
|
|
The 1st Claimant's response
|
|
On 11 March 1999, Ms. K. B. called the Tribunal on behalf of her grandmother, Claimant 1. Ms. K. B. stated that, according to her grandmother, the Account Holder's nationality was probably Hungarian. Ms. K. B. stated that her grandmother, who is 96 years old, wished to be represented by Ms. K. B. and asked that a Power of Attorney to that effect be sent to her grandmother. Ms. K. B. also stated that her grandmother had no intention of settling the claim within the family and that she had full trust in the arbitration proceedings.
|
|
The 1st Claimant granted a Power of Attorney to her granddaughter, Ms. K. B., on 27 March 1999.
|
|
The 2nd Claimant's response
|
|
By letter dated 15 April 1999, the 2nd Claimant submitted her response to the Order. The 2nd Claimant stated that she assumes that the family tree is correct. She also stated that the 1st Claimant is not a legitimate heir as her degree of relationship to the Account Holder is distant, and thus she has no claim to the legacy of the Account Holder.
|
|
The 3rd Claimant's response
|
|
By letter dated 24 March 1999, the 3rd Claimant submitted her response to the Order. The 3rd Claimant stated that, as a result of these proceedings, she discovered the existence of previously unknown relatives. She stated that her mother, S. F. (as known as C.), knew the 2nd Claimant's family (the R. family) and that her mother was, in fact, A. and A. A. V.'s sister-in-law. The 3rd Claimant also indicated that she wanted her mother to be invited into the proceeding since, according to the 3rd Claimant, her mother could verify that I. F. (S. F.'s husband and the 3rd Claimant's father) was the brother of A. F., spouse of the Account Holder. Her mother could also verify that she, the 3rd Claimant, was her parents' only child.
|
|
The 3rd Claimant also indicated that her mother suffered both in the Second World War, and later in the Hungarian revolution of 1956. As a result, the documents she submitted with her claim are the only documents to have survived, as well as few treasured photos. With her response, the 3rd Claimant provided copies of (i) I. F.'s birth certificate; (ii) A. (née F.) V.'s birth certificate; and (iii) A. and A. (née F.) V.'s marriage certificate.
|
|
The 3rd Claimant's mother, C.F., signed a Power of Attorney granting the 3rd Claimant full power and authority to represent C.F. before the Tribunal and to receive on her behalf any money awarded by the Tribunal. This Power of Attorney is subject to the 3rd Claimant's "agreement to distribute any money received from the bank to the extent appropriate under the applicable inheritance laws or by consent among the heirs." The 3rd Claimant signed a document acknowledging her agreement and agreed to distribute to her mother any such money. Reflecting these circumstances, Claimant 3 and her mother are referred to collectively in this Partial Award as the "3rd Claimant", and references to inheritance by Claimant 3 means the amount or amounts payable to [the daughter] subject to her agreement to distribute the appropriate amounts to her mother.
|
|
The 4th Claimant's response
|
|
By letter dated 18 March 1999, the 4th Claimant submitted her response to the Order. The 4th Claimant stated that she and her father had no knowledge of the family that descended from the Account Holder's spouse, A. (née F.) V., but accepted their relationship to her.
|
|
The 4th Claimant suggested that the Account Holder's estate be divided in half: 50% going to the relatives of the Account Holder and 50% going to the relatives of his spouse. As to the 50% to be paid to relatives of the Account Holder, the 4th Claimant suggested that half be paid to her aunt, Claimant 2, and half to herself. The 4th Claimant stated that her father, was prepared to waive his rights to the Account Holder's estate and demonstrated his intention by signing the letter of 18 March 1999.
|
|
As to the 50% to be paid to the relatives of the Account Holder's spouse, the 4th Claimant suggested that it be paid to Claimant 3, who may be willing to grant a portion of her award to the 1st Claimant. The 4th Claimant noted that the 1st Claimant's relationship to the Account Holder's spouse is through an earlier generation and not a descending line of heritage, thus, not all Claimants had the same degree of closeness to the Account Holder.
|
|
The 4th Claimant also commented as to various inaccuracies in the Order and enclosed a copy of her new Hungarian passport. Later by letter dated 8 April 1999, the 4th Claimant made some additional comments as to various issues of accuracy in the Order and various mistakes that occurred in the translation of her claim form from Hungarian to English.
|
|
The Bank's response
|
|
By letter dated 26 March 1999, the Bank responded to the Order. In its response, the Bank stated that, having reviewed the Bank documents and the information and documents provided by the Claimants, the Bank came to the conclusion that that person whom all the Claimants allege to be the Account Holder was the same as the person who opened the dormant account.
|
|
The Bank provided the history of the Account based on its records. The Bank stated that the account was opened in October 1932 with a balance of 5,026.50 Swiss Francs. The Bank further stated that due to unfavourable circumstances on the Swiss Capital market in subsequent years, the Bank invested 5,000.00 Swiss Francs in interest-bearing 2½% Swiss Government Treasury Bonds 1945-1950 and opened, for that purpose securities account number XX. The Bank stated that at maturity, in 1950, the 5,000.00 Swiss Francs was credited to the Account Holder together with annual proceeds. As the Bank did not reinvest the Account Holder's balance, the securities account was closed and no longer exists.
|
|
Copies of all the Parties' submissions are attached to this Partial Award and marked 'Exhibits 1-5'.
|
|
The Account
|
The Bank submitted that the Account is a dormant account and identified the assets in the Account as:
| Number of Account |
Type of Account |
Value |
| XX |
Current Account |
10,902.10 Swiss Francs as reported by the bank on 24 March 2000. |
|
|
This value may be adjusted and compensation for special interest and previously deducted bank fees may be added on the basis of the Guidelines on Interest and Fees to be established by the Board of Trustees of the Independent Claims Resolution Foundation (the "Board of Trustees"). No Guidelines adopted by the Board of Trustees have as yet been received by the Tribunal, and consequently it cannot now make any determination with respect to interest and fees. In these circumstances, the Claims Panel has determined that it is appropriate to make a Partial Award so that some payment can be made to the Claimants at this time. Compensation for special interest and for any charges previously deducted for bank fees may be added if appropriate, pursuant to the Guidelines, and a decision on that matter will be reflected in a Final Award to be issued by the Claims Panel in the future, after the Guidelines have been received by the Tribunal. For the purpose of this Partial Award, the Claims panel has used the value of the principle amount of the Account reported by the Bank and has not verified the amount, because it anticipates that guidance in this respect may be provided in the Guidelines. The Final Award will take into account any such guidance concerning the determination of the value of the principle amount.
|
|
Summary of Claim
|
|
For a claim in the Ordinary Procedure to be approved, a 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. 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.
|
|
In this case, the Bank has acknowledged, in its response to the Order, the fact that the person whom all the Claimants allege to be the Account Holder was the same as the person who opened the dormant account. The Claims Panel accepts this position shared by all the parties. In addition, each of the Claimants was afforded the opportunity to contest the accuracy of the Family Tree provided with the Order. As no substantial comments were received (except from the 3rd Claimant who added her children, A. and D.), the Claims Panel determines that the relationships depicted in the Family Tree between the Claimants and the Account Holder are accurate. Using the Family Tree as a guide, the Claims Panel needs to consider which law it would apply to determine the distribution of the Account among the Claimants.
|
|
The events that form the background of these claims took place in a community known as Komárno/Komarom, which is divided by the Danube River. During the times relevant to this case, Komarom was in Hungary, and Komárno was in what was Czechoslovakia in one period and Slovakia at other times, and during World War II was under German control. For purposes of simplicity, in this award we use only the term "Slovakia", although a different designation might be more technically accurate with respect to certain periods.
|
|
It appears that the Account Holder [Name], lived in the community of Komárno/Komarom. The Hungarian Consulate in Bern, Switzerland, has informed the Claims Panel that the Account Holder was not Hungarian at the time of his death. The Claims Panel therefore concludes that it is plausible that he was a Slovak national. The birth certificate of his wife, A.V. (née F.), shows that she was born in Hungary; however, the Claims Panel determines that it is plausible that she acquired the nationality of her husband and was a Slovak national at the time of her death. The Claims Panel has no information concerning the nationality of the Account Holder's sons, Pe. and Pa., but finds it plausible that they had the same nationality as their father. Accordingly, in deciding these claims the Claims Panel proceeds on the basis that the Account Holder, his wife and two sons were all Slovak nationals at the respective times of their deaths.
|
|
The evidence before the Claims Panel establishes that the Account Holder died on [date] 1939. It appears that the cause of his death was not related to the Holocaust. He was survived by his wife, A., and their two sons, Pe. (who was born on [date]), and Pa. (whose date of birth was [date]). A.V. and her two sons disappeared and have not been heard of since 1944. It is plausible to conclude that they, along with others of their community, were deported to a concentration camp in 1944 and died shortly thereafter. No will of the Account Holder, A.V., Pe. or Pa. has been submitted to the Claims Panel, and we have no evidence that any of them ever made a will.
|
|
In order to resolve the claims in this case, the Claims Panel must decide several legal questions. These include: (i) whether under Slovak law it can be concluded in the circumstances that [the Account Holder] died without a will? (ii) if he died without a will, what were the respective succession rights of A.V, Pe. and Pa.? (iii) in the circumstances, would A.V., Pe. and Pa. be legally considered to have died at the same moment, and, if so, who would succeed to any property that each of them possessed? and (iv) if A.V., Pe. and Pa. are not legally considered to have died at the same moment, in what order are they considered by law to have died, and who would receive any property each of them possessed?
|
|
These inheritance questions are to be decided under Slovak law, which is the law most closely connected with the issues in dispute because, as noted above, [the Account Holder], A.V., Pe. and Pa. were plausibly Slovak nationals at the times of their respective deaths. In this connection, Article 16 of the Rules requires the Claims Panel to "apply the law with which the matter is dispute has the closest connection in matters concerning the relationship between the published Account Holder...and the Claimant (e.g., to inheritance matters...)"
|
|
One way to approach these legal questions would be to apply Slovak law in force at the respective times of their deaths. That approach, however, would be problematic for several reasons. In particular, Article 42 of the Rules provides that the Tribunal shall construe them "so as to accomplish the purpose of fair and expeditious disposition of all claims." For the reasons discussed below, the task of determining Slovak law in 1939 and 1944 not only would be highly time-consuming, but also would be likely to yield results that would be uncertain and unfair.
|
|
In an effort to find expeditiously the answers to the above questions of inheritance law, the Claims Panel sought the assistance of the Swiss Institute of Comparative Law, which has a strong reputation for reliable legal research. The deputy director of the Institute reported the following in a letter dated 28 June 1999:
|
|
"...Our preliminary examination of the issues has revealed that the sources and contents of those areas of ... Slovak law which would need to be studied in depth, have been subjected to repeated and radical revision since 1939... Our usual practice in similar cases is to request the assistance of correspondents and government agencies on the spot. In the present instance, however, this approach would be quite unlikely to produce useful results, because the relevant law of successions was apparently, to a large extent, customary in nature. The study which you require will thus essentially be one of legal history..." |
|
Consequently, the Institute declined to undertake the task. It is to be noted that the difficulty in determining the law at the time of the death of A.V., Pe. and Pa., which it appears occurred during the period of Germany control of the area, would necessitate analysis of complex questions concerning the extent to which Slovak law applied in that period.
|
|
As noted, the mandate of Article 42 of the Rules is that the Claims Panel achieve a "fair" result as well as one that is "expeditious". It is highly unlikely that all of the legal standards for succession in effect in 1939 and 1944 can be accepted as being fair in the light of current public policy. For example, it is likely that the "repeated and radical changes" to which the Institute referred reflect a major expansion of the rights of women in the family. An arbitral tribunal deciding a case today cannot be expected to apply archaic law that may be inconsistent with current norms of human rights. Accordingly, the Claims Panel has determined that in order to fulfil its mandate to be both expeditious and fair it should apply the Slovak law that is presently in force.
|
|
The Opinion from the Swiss Institute of Comparative Law
|
|
On 15 November 1999, the Claims Panel sought the Opinion of the Swiss Institute of Comparative Law. The Institute was provided with the background of the case and requested to provide its Opinion (the "Opinion") as to the present Slovakian law (i) governing the distribution of the Account Holder's estate; and (ii) determining the distribution of the estates of A.V., Pe. and Pa., as it is not possible to resolve the issue of who pre-deceased whom?
|
|
The Institute responded on 26 November 1999, providing their opinion to the questions raised by the Claims Panel (attached to this Partial Award and marked 'Exhibit 6'). The opinion states that Slovakian succession law is governed by the Civil Code adopted in 1964.
|
|
According to the Opinion, where an individual dies intestate, the law sets out four orders of succession in the following order:
|
A.
|
First Order - the intestate's children and spouse inherit each an equal part of the estate |
B.
|
Second Order - where the intestate's descendants do not inherit, then the deceased's spouse and the deceased's parents shall inherit in equal parts, although the deceased's spouse shall in any case inherit at least one half of the estate. Under the Second and Third Orders, heirs may also include those who lived in the same household with an intestate for at least one (1) year prior to his or her death and who, for that reason, took care of the same household or were dependent on the intestate for support. The Claims Panel has no evidence that there was anyone living with the Account Holder, his spouse, or his children, at the time of either of their respective deaths. |
C.
|
Third Order - where there are no heirs in the First and Second Order, the deceased's siblings shall inherit in equal parts. Should one of the deceased's siblings not inherit, his children shall acquire his share of the inheritance in equal parts. |
D.
|
Fourth Order - the grandparents of the intestate shall inherit in equal parts, and if none of them inherits, their children shall inherit in equal parts. |
E.
|
An estate not acquired by any heir shall escheat to the state. |
|
Finally the opinion states that, according to the Slovakian Civil Code, the estate of a deceased person passes to his heirs upon his death and an individual has the capacity to inherit only if alive when the estate passes. In view of the Claims Panel's determination that A., Pe., and Pa. died at the same time (i.e., none was alive after the death of the others), none was able to inherit from the others.
|
|
The Distribution of the Account
|
|
The division of the estate of [the Account Holder] - The First Order of succession provides that an intestate's spouse and children each inherit an equal part of the estate. According to the Opinion, the estate of a deceased person passes, at his death, to those heirs who are alive at the time of the deceased's death. Because [the Account Holder]'s wife, A., and his children, Pe. and Pa., were all alive at the time of [the Account Holder]'s death, his estate is divided equally between them. Therefore, A.V., Pe., and Pa. each inherited 1/3 of the Account.
|
|
The division of the estate of A.V. (née F.) - Because the Claims Panel has determined that it is plausible that neither Pe. nor Pa. was alive at the time of Anna's death, neither inherits from her estate under the First Order. As to the Second Order, there is no evidence that A.'s parents were alive at the time of her death, and therefore, did not inherit from her estate. Applying the Third Order, Anna's sibling, I. F., inherits her entire estate. I. died in 1945 in Hungary and was survived by his wife, S. (also known as C.), and his daughter, Claimant 3 (collectively the 3rd Claimant). In these circumstances, the 3rd Claimant inherits all of A.'s portion of the Account. Such inheritance comprises 1/3 of the amount in the Account.
|
|
The division of the estate of Pe. V. - Since Pe. neither was married nor had children, the First Order is not applicable to him. Because neither of his parents was alive at the time of his death, the Second Order also does not apply. Further, since the Claims Panel determines that Pe. and Pa. died at the same time, Pa. does not inherit from Pe.'s estate under the Third Order.
|
|
Applying the Fourth Order, the Claims Panel must consider the rights of Peter's grandparents and those descended from them. Descendants of each set of grandparents inherit one-half (1/2) of Pe.'s estate.
|
|
Pe.'s maternal grandparents, M. F. and J.-F., would have inherited if alive at the time of Pe.'s death. The Claims Panel has no evidence before it, however, of the time of their respective deaths and determines that it is plausible that they died before Pe. and did not inherit from him. They were survived by their son, I. F., who, applying the Fourth Order, inherited from Pe.. Under the same reasoning applied above with respect to A.'s estate, the 3rd Claimant inherits half of Pe.'s estate, which is equal to 1/6 of the Account.
|
|
Similarly applying the Fourth Order, Pe.'s paternal grandparents, M. W. and R. W., would have inherited if alive at the time of Pe.'s death. The Claims Panel has no evidence before it, however, of the time of their respective deaths and determines that it is plausible that they died before Pe. and did not inherit from him. They were survived by their daughters, V. R. (née W.) and Claimant 2, together inherit the other half of Pe.'s estate.
|
|
V.'s inheritance is 1/4 of Pe.'s estate, which amounts to 1/12 of the Account. If alive, V. R. also would have inherited 1/4 of Pe.'s estate. V. R. died in 1947, however, and was survived by her daughter, K. M. (the 4th Claimant). In these circumstances, K., as V. R.'s daughter, inherits V. R.'s portion of Pe.'s estate, which is equal to 1/12 of the Account. As stated above in K.'s response to the Order, V. R.'s husband, Dr. S. M., has waived any rights he may have to her inheritance in this proceeding.
|
|
The division of the estate of Pa. V.- The estate of Pa. is distributed under the same reasoning as that of Pe.. Therefore, the 3rd Claimant inherits one-half of Pa.'s estate, which is equal to 1/6 of the Account, while the 2nd Claimant and the 4th Claimant each inherit 1/4 of Pa.'s estate, each equal to 1/12 of the Account.
|
|
Summary of the Claimants' respective distributions
|
 |
Claimant 2 inherits 1/6 of the Account, comprised of 1/12 of the Account inherited from Peter (1/4 of his estate) and 1/12 of the Account inherited from Pa. (1/4 of his estate). |
|
Claimant 3 and C. F. (collectively the 3rd Claimant), I.'s daughter and wife, inherit 2/3 of the Account, comprised of 1/3 of the Account inherited from A. (all of her estate), 1/6 of the Account inherited from Pe. (half of his estate), and 1/6 of the Account inherited from Pa. (half of his estate). |
|
Claimant 4 inherits 1/6 of the Account, comprised of 1/12 of the Account inherited from Peter (1/4 of his estate) and 1/12 of the Account inherited from Pa. (1/4 of his estate). |
|
According to the Four Orders of Succession, the 1st Claimant is not entitled to any part of the Account as her relationships to the Account Holder, his wife, and their children, do not qualify for the application of the Orders of Succession detailed above.
|
|
The Claims Panel also notes there is no information before the Tribunal that might suggest that there are other persons with equal or better claims to the Account. Finally, the Claims Panel must have no reason to believe that the Account Holder may have acted as an intermediary for a victim of Nazi persecution, that the Claimants may have submitted fraudulent claims, or that the assets in the Account may have been looted from victims of Nazi persecution. The Claims Panel is satisfied that none of these circumstances exist in the present case.
|
|
In light of these considerations, the Claims Panel determines that it is plausible in light of all the circumstances that the 2nd, 3rd and 4th Claimants are each entitled to parts of the Account as shown below. The Claims Panel also determines that the 1st Claimant is not entitled to any part of the Account.
|
II.
|
PARTIAL AWARD |
|
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:
|
1.
|
The Claims Panel determines that the claim of Claimant 1 is not plausible and orders that her claim to the Account be denied and her file be closed and archived with the Tribunal. |
2.
|
The Claims Panel recognises that the 2nd, 3rd and 4th Claimants have valid claims to the assets contained in the Account of the Account Holder and orders the Bank to pay to or at the direction of the Claimants as follows: |
|
a.
|
Claimant 2, is awarded 1/6 of the value in the Account, amounting to 1,817.02 Swiss Francs; |
b.
|
Ms. Claimant 3, is awarded 2/3 of the value in the Account, amounting to 7,268.06 Swiss Francs, subject to her agreement to distribute to her mother, this amount to the extent appropriate under applicable inheritance laws or by consent among the heirs; and |
c.
|
Claimant 4, is awarded 1/6 of the value in the account, amounting to 1,817.02 [Swiss Francs]. |
|
|
In making this payment, the Bank shall not assess any fees. |
3.
|
The Claims Panel will issue a Final Award, in which compensation for special interest and bank fees previously deducted may be added on the basis of Guidelines adopted by the Board of Trustees of the Independent Claims Resolution Foundation. |
4.
|
This Partial Award will be sent to the Parties by registered mail against receipt. |
28 April 2000
|
| Chairperson |
Co-Arbitrator |
Co-Arbitrator |
| [signature] |
[signature] |
[signature] |
|
|
|
| Prof. Dr. H. M. Riemer |
Prof William W. Park |
Judge Howard M. Holtzmann |
|