orders made in similar circumstances against wholly Italian-owned companies. But the United States claims that there was "discrimination" in
favour of IRI, an entity controlled by Italy ;and this was, in the view of the
United States, contrary to the FCN Treaty and Supplementary Agreement. It is contended that the interests of IR1 were directly contrary to
those of Raytheon and Machlett, and the Italian Government intervened
to advance its own commercial interests at the latter's expense. However,
the requisition order in itself did not serve any interest of IRI; it is only if
the requisition is regarded as a step in a process destined to transfer ELSI's
assets to IR1 that the factual situation would afford any basis for the argument now under examination. As indicated above, the United States
stated fonnally during the oral proceedings that it was not arguing that the
acts and omissions complained of amount to a "conspiracy", and did not
speculate as to why the relevant agents and officials of the Respondent
acted as they did (see paragraph 117 above). There is no sufficient evidence before the Chamber to support the suggestion that there was a plan
to favour IR1 at the expense of ELSI, and the claim of "discriminatory
measures" in the sense of Article 1 of the Supplementary Agreement must
therefore be rejected.
123. In order to show that the requisition order was an "arbitrary" act
in the sense of the Supplementary Agreement to the FCN Treaty, the
Applicant has relied (interalia) upon the status of that order in Italian law.
It contends that the requisition "was precisely the sort of arbitrary action
which was prohibited" by Article 1 of the Supplementary Agreement, in
that "under both the Treaty and Italian law, the requisition was unreasonable and improperly motivated"; it was "found to be illegal under Italian
domestic law for precisely this reason". Relying on its own English translation of the decision of the Prefect of Palermo of 22 August 1969, the
Applicant concludes that the Prefect found that the order was "destitute
of any juridical cause which may justify it or make it enforceable". Italy
first contended that the word "or" in the translation of this passage should
be replaced by "and", and subsequently put fonvard the alternative translation that "the order, generically speaking, lacks the proper motivation
that could justify it and make it effective". It may be noted in passing that
when ELSI, immediately after the making of the requisition order, formally invited the Mayor of Palermo to revoke the order, it referred to it
throughout as "the said illegal and arbitrary order" ("detto illegale ed arbitrario provvedimento"); but the appeal submitted to the Prefect, while
citing numerous legal grounds for annulment, including "eccesso di potere
persviamento delfine"("excess of power by deviation from the purpose"),
contained no claim that the order had been "arbitrary". It is therefore
appropriate for the Chamber to examine the legal grounds given by the
Prefect of Palermo for his decision, as well as what was said by the
Court of Appeal of Palermo on the legal impact of the Prefect's decision on the requisition order, and consider whether the findings of the