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Elettronica Sicula S.P.A. (Elsi) (United States v. Italy)

Published online by Cambridge University Press:  27 February 2017

Terry D. Gill
Terry D. Gill*
Affiliation:
Institute of Public International LawUniversity of Utrecht
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Abstract

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Type
International Decisions
Information
American Journal of International Law , Volume 84 , Issue 1 , January 1990 , pp. 249 - 258
Copyright
Copyright © American Society of International Law 1990

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References

1 Feb. 2, 1948, 63 Stat. 2255, TIAS No. 1965, 79 UNTS 171.

2 Sept. 26, 1951, 12 UST 131, TIAS No. 4685, 404 UNTS 326.

3 1989 ICJ Rep. 15, 18, para. 4. See also 24 ILM 1742 (1985) (U.S. Department of State’s announcement of decision to refer the case to an ICJ Chamber). The Chamber was composed of Judge Ruda (President), and Judges Ago, Jennings, Oda and Schwebel. In its Order on its election of the Chamber, the Court stated that Judge Nagendra Singh, who was then President of the Court, had become President of the Chamber under Article 17, paragraph 2 of the Rules of Court. Elettronica Sicula S.p.A. (ELSI), Constitution of Chamber, 1987 ICJ Rep. 3, 4, para. 4 (Order of Mar. 2). After the death of Judge Singh, Judge Ruda was elected President of the Court and succeeded as President of the Chamber. See ICJ Press Communiqué No. 89/1 (Jan. 12, 1989).

4 1989 ICJ Rep. at 34, para. 34. For the facts leading up to the requisition of the plant and relating to ELSI’s financial situation, see id. at 23–32, paras. 12–29. IRI is the Italian government-owned corporation, Istituto per la Ricostruzione Industriale.

5 Id. at 44, para. 54.

6 Id. at 46 and 47, paras. 59 and 63.

7 Id. at 48–49, para. 66; see also id. at 55–56, paras. 83–85.

8 Id. at 58, para. 92; see also id. at 62, para. 101.

9 Id. at 60, para. 97. For an indication of ELSI’s financial situation in the period just prior to the requisition, as expressed during the proceedings, see Compte Rendu of the oral proceedings, Doc. C3/CR89/2, at 58 (Feb. 14, 1989), in which a former manager of ELSI, John D. Clare, responded to a question during cross-examination by counsel for Italy, Keith Highet, by stating that “[w]e were belly up just before the requisition.”

10 1989 ICJ Rep. at 81, para. 135.

11 Id. at 65, para. 108. The Court considered the protected “property” under the Treaty to be ELSI itself and, thus, it turned aside the Italian contention that the protection included only the Raytheon shares. Id. at 64, para. 106.

12 Id. at 65, para. 108.

13 Id. at 76, para. 128 (quoting Asylum (Colom. v. Peru), 1950 ICJ Rep. 266, 284 (Judgment of Nov. 20)).

14 Id. at 71, para. 119; see also id. at 71–77, paras. 120–30.

15 Id. at 84 (Oda, J., sep. op.) (quoting Barcelona Traction Light & Power Co. (Second Phase), 1970 ICJ Rep. 3, 34–37, paras. 41–50 (Judgment of Feb. 5)).

16 1989 ICJ Rep. at 95 (Schwebel, J., dissenting).

17 Id. at 100.

18 Id. at 113.

19 Id. at 114.

20 Id. at 115 (emphasis deleted). Judge Schwebel’s analysis draws extensively on the International Law Commission’s proposals for codification of the law of state responsibility and related Commentary.

21 Id.

22 This intention was stated in the U.S. State Department notice of cancellation of acceptance of the Court’s compulsory jurisdiction and decision to refer ELSI to a Chamber of the Court, note 3 supra.