and that if those States were to take the immovable property of a corporation for a lawful public use, they would have to make compensation; Italy
has not disputed these legislative provisions.
135. Secondly, however, even so there remains precisely the same difficulty as in trying to apply Article III, paragraph 2, of the FCN Treaty:
what really deprived Raytheon and Machlett, as shareholders, of their
right to dispose of ELSI's real property, was not the requisition but the
precarious financial state of ELSI, ultimately leading inescapably to
bankruptcy. In bankruptcy the right to dispose of the property of a corporation no longer belongs even to the Company, but to the trustee acting
for it; and the Chamber has already decided that ELSI was on a course to
bankruptcy even before the requisition. The Chamber therefore does not
find that Article VI1 of the FCN Treaty has been violated.
136. Having found that the Respondent has not violated the
FCN Treaty in the manner asserted by the Applicant, it follows that the
Chamber rejects also the claim for reparation made in the submissions of
the Applicant.
137. For these reasons,
(1) Unanimously,
Rejects the objection presented by the Italian Republic to the admissibility of the Application filed in this case by the United States of Arnerica
on 6 February 1987;
(2) By four votes to one,
Finds that the Italian Republic has not committed any of the breaches,
alleged in the said Application, of the Treaty of Friendship, Commerce
and Navigation between the Parties signed at Rome on 2 February 1948,
or of the Agreement Supplementing that Treaty signed by the Parties at
Washington on 26 September 1951.
IN FAVOUR: President Ruda; Judges Oda, Ago and Sir Robert Jennings;
AGAINST: Judge Schwebel.
(3) By four votes to one,
Rejects, accordingly, the claim for reparation made against the Republic of Italy by the United States of America.
IN FAVOUR:
President Ruda; Judges Oda, Ago and Sir Robert Jennings;
AGAINST : Judge Schwebel.