"diritti" (rights), and has argued that, on the basis of the principle
expressed in Article 33, paragraph 4, of the Vienna Convention on the
Law of Treaties, the correct interpretation of the Protocol must be in the
more restrictive sense of the Italian text.
119. In the view of the Chamber, however, neither this question of interpretation of the two texts of the Protocol, nor the questions raised as to
the possibilities of disguised expropriation or of a "taking" amounting
ultimately to expropriation, have to be resolved in the present case,
because it is simply not possible to say that the ultimate result was the consequence of the acts or omissions of the Italian authorities, yet at the
same time to ignore the most important factor, namely ELSI's financial
situation, and the consequent decision of its shareholders to close the
plant and put an end to the company's activities. As explained above (paragraphs 96-98), the municipal courts considered that ELSI, if not already
insolvent in Italian law before the requisition, was in so precarious a state
that bankruptcy was inevitable. The Chamber cannot regard any of the
acts complained of which occurred subsequent to the bankruptcy as
breaches of Article V, paragraph 2, in the absence of any evidence of collusion, which is now no longer even alleged. Even if it were possible to see
the requisition as having been designed to bring about bankruptcy, as a
step towards disguised expropriation, then, if ELSI was already under an
obligation to file a petition of bankruptcy, or in such a financial state
that such a petition could not be long delayed, the requisition was an
act of supererogation. Furthermore this requisition, independently of
the motives which allegedly inspired it, being by its terms for a limited
period, and liable to be overturned by administrative appeal, could not,
in the Chamber's view, amount to a "taking" contrary to Article V unless
it constituted a significant deprivation of Raytheon and Machlett's interest in ELSI's plant; as might have been the case if, while ELSI remained
solvent, the requisition had been extended and the hearing of the administrative appeal delayed. In fact the bankruptcy of ELSI transformed
the situation less than a month after the requisition. The requisition
could therefore only be regarded as significant for this purpose if it
caused or triggered the bankruptcy. This is precisely the proposition
which is irreconcilable with the findings of the municipal courts, and
with the Chamber's conclusions in paragraphs 99-100 above.
120. Article 1 of the Supplementary Agreement to the FCN Treaty,
which confers rights not qualified by national or most-favoured-nation
standards, provides as follows :