117. It must immediately be added that the United States, in the course
of the oral proceedings, in response to an Italian assertion that it was
attempting to establish a conspiracy to bring about the change of ownership, made it very clear that this part of its case did not depend upon, or in
any way involve, any allegation that the Italian authorities were parties to
such a conspiracy. The United States stated formally that it "has never
argued and does not now argue that the acts and omissions of the
Respondent that violated the Treaty amount to a 'conspiracy"'. Moreover, it was added that whilst the relief sought was "based on the acts and
omissions of the Respondent's agents and officials at the federal and
local levels (including IRI), without any allegation that these officials
were working in conspiracy", the United States did not "speculate as
to why these agents and officials of the Respondent acted in the manner
they did"; or, as the United States Agent put it in his argument:
"These acts and omissions constituted Treaty violations . . .
whether or not the Italian Government entities involved knew of
each other's actions, and whether or not they were acting in concert
or at cross purposes."
118. The argument that there was a "taking" involving transfer of title
gives rise to a number of difficulties. Even assuming, though without
deciding, that "espropriazione"might be wide enough to include not
only forma1 and open expropriation, but also a disguised expropriation,
there would still be a question whether the paragraph can be extended
to include even a "taking" of an Italian corporation in Italy, of which,
strictly speaking, Raytheon and Machlett only held the shares. This,
however, is where account must also be taken of the first paragraph of
the Protocol appended to the FCN Treaty, which provides :
" 1. The provisions of paragraph 2 of Article V, providing for the
payment of compensation, shall extend to interests held directly or
indirectly [si estenderanno ai diritti spettanti direttamente od indirettamente ai cittadini . . .] by nationals, corporations and associations of
either High Contracting Party in property which is taken within the
territories of the other High Contracting Party."
The English text of this provision suggests that it was designed precisely to
resolve the doubts just described. The interests of shareholders in the
assets of a Company, and in their residuary value on liquidation, would
appear to fa11in the category of the "interests" to be protected by Article V,
paragraph 2, and the Protocol. Italy has however drawn attention to the
use in the Italian text - which is equally authentic - ofthe narrower term