did, by triggering the bankruptcy, deprive ELSI of the possibility of disposing of its immovable property, it was really Raytheon and Machlett
who were deprived; and allegedly in violation of Article VII.
133. There are however problems in any attempt to apply the provisions of Article VI1 to the actual facts of this case. First, the protection
which paragraph 1 of Article VI1 affords to this group of rights is not unqualified. The qualification designated "(a)"refers to the rights enjoyed
by Italian nationals in the territory of the United States of America, which
in effect simply subjects Italian nationals to the municipal laws in the
United States, and does not concern us. Qualification "(b)"does, for this
applies to the rights enjoyed by United States nationals in the territory
of the Republic of Italy. It is a convoluted qualification because it lays
down alternative standards, which standards are themselves then both
qualified by the same proviso. The terms governing the rights are to be
no less favourable than those which are or may hereafter be accorded
by the "state, territory or possession of the United States of America in
which such national is domiciled, or under the laws of which such corporation or association is created or organized" - which in the case
of Raytheon is the State of Delaware and in the case of Machlett the
State of Connecticut - "to nationals, corporations and associations of
the Italian Republic". The proviso is :
"that the Italian Republic shall not be obligated to accord to nationa l ~corporations
,
and associations of the United States of America
rights in this connection more extensive than those which are or may
hereafter be accorded within the territories of such Republic to
nationals, corporations and associations of such Republic".
134. The Chamber has thus to make the somewhat elaborate juridical
calculus which this provision in the FCN Treaty appears to demand for its
application. No very cogent evidence was put before the Chamber to
show that the application of Italian law in this matter was less favourable
than the treatment accorded by Italy to its own nationals, corporations
and associations, in Italy. Indeed it appeared that, particularly during the
troubled times of 1968, requisitions of Italian companies by the local
Mayors had happened rather frequently. The claim must therefore be
taken to be that ELSI was given less favourable treatment than might have
been enjoyed by an Italian Company under the laws of Delaware and
Connecticut in similar circumstances. The United States drew attention
to texts showing that
"Under the laws of both Delaware and Connecticut, corporations
may be dissolved and their assets sold pursuant to determinations by
their boards of directors and shareholders",