ruptcy, the Government of Italy discouraged private bidders at the auctions held to dispose of ELSI's assets, by informing the public at large that
the Government would be taking over ELSI's facilities. While proceeding
with plans to take over ELSI, for example by negotiating agreements for
rehiring the staff, IR1 is said to have "boycotted" the first three auctions of
the assets, at which the terms set by the bankruptcy judge were not to its
liking. ELTEL proposed to the trustee in bankruptcy that it be permitted
to lease the plant, and to purchase the work in progress, and this was
agreed to by the bankruptcy authorities on terms which, it is claimed, were
adverse to ELSI's interests, both because the sums involved were too low
and because ELTEL was placed in a position to dictate the terms of the
final sale. At the final auction, ELTEL, already in possession under the
lease, acquired the plant and related equipment for 4,000 million lire, the
figure reported in the press to have been previously agreed on between
IR1 and the Italian authorities. As a result of the arrangements made with
the bankruptcy authorities for a piecemeal take-over, the total amount
received for ELSI's assets was slightly over 4,000 million lire, as compared with the company's book valuation of over 12,000 million lire.
116. Thus, the charge based on the combination of the requisition and
subsequent acts is really that the requisition was the beginning of a process
that led to the acquisition of the bulk of the assets of ELSI (which was
wholly owned by Raytheon and Machlett) for far less than market value.
That is a charge, not of mere temporary taking - though the United States
also contended that a temporary requisition can constitute an indirect
taking - but of a process by which title to ELSI's assets itself was in the
end transferred. So far as the requisition is concerned, counsel put the
United States argument this way:
"the fact that the requisition was for an extendable six-month period
does not make this any less of an expropriation of interests in
property, given the fact that the requisition drove ELSI into
bankruptcy".
What is thus alleged by the Applicant, if not an overt expropriation, might
be regarded as a disguised expropriation; because, at the end of the process, it is indeed title to property itself that is at stake. The argument is that
if a series of acts or omissions of the Italian authorities had the end result,
whether intended or not and whether the result of collusion or not, of
causing United States property in Italy to be ultimately transfened into
the ownership of Italy, without proper compensation, there would be a
violation of Article V, paragraph 2, of the FCN Treaty.