66
ELETTRONICA SICULA (JUDGMENT)
sition order, or, to cite the words of counsel for the Applicant (paragraph 65 above),
"the Respondent violated its obligations when it unreasonably
delayed ruling on the lawfulness of the requisition for 16 months
until immediately after the ELSI plant, equipment and work-inprocess had al1 been acquired by ELTEL".
The time taken by the Prefect was undoubtedly long; and the Chamber
was not entirely convinced by the Respondent's suggestion that such
lengthy delays by Prefects were quite usual. Yet it must be remembered
that the requisition in fact lapsed after six months and that Italian law did
provide a safeguard against delays by the Prefect. It was possible after
120 days from the filing of the appeal to serve on the Prefect a request
requiring him to render a decision within 60 days (paragraph 41 above).
Raytheon and Machlett were never in a position to take advantage of this
procedure, because by the time the 120 days had elapsed the trustee in
bankruptcy was in control of the Company; on the other hand, the trustee
in bankruptcy did employ this procedure, and the Prefect shortly afterwards gave his decision on the appeal.
110. Counsel for the Applicant has referred to this delay as "a denial of
the level of procedural justice accorded by international law". Its claim in
this respect is however not founded on the rules of customary international law concerning denial of justice, nor on the text of the FCN Treaty
(Article V, paragraph 4) which provides for access to justice. The relevance of the delay of the Prefect's ruling has been expressed in two ways.
First, it is said, had there been a speedy decision by the Prefect, the bankruptcy of ELSI could have been avoided; the Chamber is unable to accept
this argument, for the reasons already explained in connection with the
claim under Article III, paragraph 2, of the FCN Treaty. Secondly, it is
contended that once the requisition occurred, the Respondent had an obligation to protect ELSI from its deleterious effects, and one of the ways in
which it fell short of this obligation was by failing to provide an adequate
method of overturning the requisition.
111. The primary standard laid down by Article V is "the full protection and security required by international law", in short the "protection
and security" must conform to the minimum international standard. As
noted above, this is supplemented by the criteria of national treatment
and most-favoured-nation treatment. The Chamber is here called upon to
apply the provisions of a treaty which sets standards - in addition to the
reference to general international law - which may go further in protecting nationals of the High Contracting Parties than general international
law requires; but the United States has not - Save in one respect suggested that these requirements do in this respect set higher standards
than the international standard. It must be doubted whether in al1 the
circumstances, the delay in the Prefect's ruling in this case can be
regarded as falling below that standard. Certainly, the Applicant's use