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ELETTRONlCA SICULA ( J U D G M E N T )
104. Paragraph 1 thus provides for "the most constant protection and
security" for nationals of each High Contracting Party, both "for their
persons and property"; and also that, in relation to property, the term
"nationals" shall be construed to "include corporations and associations" ; and in defining the nature of the protection, the required standard
is established by a reference to "the full protection and security required
by international law". Paragraph 3 elaborates this notion of protection
and security further, by requiring no less than the standard accorded
to the nationals, corporations and associations of the other High
Contracting Party; and no less than that accorded to the nationals, corporations and associations of any third country. There are, accordingly,
three different standards of protection, al1 of which have to be satisfied.
105. A breach of these provisions is seen by the Applicant to have been
committed when the Respondent "allowed ELSI workers to occripy the
plant" (see paragraph 65 above). It is the contention of the United States
that once the plant had been requisitioned, ELSI's employees began an
occupation of the premises which continued, so far as the United States
was aware, up to the re-opening of the plant by ELTEL; and that this
occupation had the tacit approval of local authorities, who made no effort
to prevent or to end it, or otherwise to protect the premises. To this occupation the United States attributes as injurious consequences, first a
deterioration of the plant and related material and equipment, and
secondly that it impeded the efforts of the trustee in bankmptcy to dispose of the plant.
106. Italy has objected that Article V, paragraphs 1 and 3, guarantees
the protection and security of property belonging to United States
companies in Italy, but the plant in Palermo which, according to the
United States, should have been protected under the FCN Treaty belonged
to the Italian company ELSI. The United States replies that the "property
of Raytheon and Machlett in Italy" was ELSI itself, and Italy was obligated to protect the entire entity of ELSI from the deleterious effects of
the requisition. While there may be doubts whether the word "property"
in Article V, paragraph 1, extends, in the case of shareholders, beyond
the shares themselves, to the company or its assets, the Chamber will
nevertheless examine the matter on the basis argued by the United States
that the "property" to be protected under this provision of the FCN
Treaty was not the plant and equipment the subject of the requisition, but
the entity of ELSI itself.
107. That there was some occupation of the plant by the workers after
the requisition is something that Italy has not sought to deny, and the
Court of Appeal of Palermo referred in passing to the circumstance of the
requisitioning authority having tolerated the "unlawful" act of occupation
of the plant by the workers ("la autorità requirente avesse tollerato l'illecito
penale di una occupazione dei reparti di lavorazione da parte delle maestranze'y. It appears, nevertheless, to have been a peaceful occupation, as
may be learned from ELSI7sown administrative appeal of 19 April 1968to