changed nothing, then the United States has failed to prove that there was
any interference with control and management in any real sense. The
Chamber has no need to go into the question of the extent to which it
could or should question the validity of a finding of Italian law, the law
governing the matter, by the appropriate Italian courts. It is sufficient to
note that the conclusion above, that the feasibility of an orderly liquidation plan is not sufficiently established, is reinforced by reference to the
decision of the courts of Palermo on the claim by the trustee in bankruptcy
for damages for the injury caused by the requisition. Whether regarded as
findings of Italian law or as findings of fact, the decisions of the courts of
Palermo simply constitute additional evidence of the situation which the
Chamber has to assess.
100. It is important, in the consideration of so much detail, not to get
the matter out of perspective: given an under-capitalized, consistently
loss-making company, crippled by the need to service large loans, which
company its stockholders had themselves decided not to finance further
but to close and sel1 off because, as they were anxious to make clear to
everybody concerned, the money was running out fast, it cannot be a matter of surprise if, several days after the date at which the management itself
had predicted that the money would run out, the company should be considered to have been actually or virtually in a state of insolvency for the
purposes of Italian bankruptcy law.
101. If, therefore, the management of ELSI, at the material time, had
no practical possibility of carrying out successfully a scheme of orderly
liquidation under its own management, and may indeed already have forfeited any right to do so under Italian law, it cannot be said that it was the
requisition that deprived it of this faculty of control and management.
Furthemore, one feature of ELSI's position stands out: the uncertain and
speculative character of the causal connection, on which the Applicant's
case relies, between the requisition and the results attributed to it by the
Applicant. There were several causes acting together that led to the disaster to ELSI. No doubt the effects of the requisition might have been one of
the factors involved. But the underlying cause was ELSI's headlong
course towards insolvency; which state of affairs it seems to have attained
even prior to the requisition. There was the warning loudly proclaimed
about its precarious position; there was the socially damaging decision to
terminate the business, close the plant, and dismiss the workforce; there
was the position of the banks as major creditors. In short, the possibility of
that solution of orderly liquidation, which Raytheon and Machlett claim
to have been deprived of as a result of the requisition, is purely a matter of
speculation. The Chamber is therefore unable to see here anything which
can be said to amount to a violation by Italy of Article III, paragraph 2, of
the FCN Treaty.