graph :the allegation by the United States of a violation of this paragraph
by Italy relates to the first sentence.
69. In terms of the present case, the effect of the first sentence of this
paragraph is that Raytheon and Machlett are to be permitted, in conformity with the applicable laws and regulations within the territory of
Italy, to organize, control and manage ELSI. The claim of the United
States focuses on the right to "control and manage"; the right to "organize",
apparently in the sense of the creation of a corporation, is not in question
in this case. 1s there, then, a violation of this Article if, as the United
States alleges, the requisition had the effect of depriving ELSI of both the
right and practical possibility of selling off its plant and assets for satisfaction of its liabilities to its creditors and satisfaction of its shareholders?
70. It is undeniable that the requisition of a firm's "plant and relative
equipment" must normally amount to a deprivation, at least in important
part, of the right to control and manage. It was objected by Italy that the
requisition in no way affected "control by the shareholders over the company", but merely concerned the management by the company of property belonging to the company. It is true that the direct impact of the requisition was only on control of the property requisitioned. It is however also
undeniable that this requisition, which remained in effect until30 September 1968, was issued to avoid the closure of ELSI's plant, the dismissal of
its workforce, and as a consequence the probable dispersa1 of the assets,
al1 of which were integral to ELSI's plan for orderly liquidation. Since the
requisition thus had the design of preventing Raytheon from exercising,
for six critical months, what was at that time a most important part
of its right to control and manage ELSI, there exists a question whether
the requisition was in conformity with the requirements of Article III, paragraph 2, of the FCN Treaty. Before coming to a conclusion
on that question it is necessary now to take into consideration certain
other matters.
71. Article III of the FCN Treaty, both in paragraph 1 concerning
rights to be enjoyed by the nationals of one party in the territory of the
other, and in paragraph 2, concerning rights of nationals of one party to
"organize, control and manage" corporations of the other party, contains
the qualifying phrase, "in conformity with the applicable laws and regulations" of the latter party. It was argued by Italy that this clause confirms
that the correct interpretation of that paragraph is that it was not intended
to confer upon United States nationals any rights of control and management more extensive, or more extensively protected, than those enjoyed
by other stockholders, of whatever nationality, in Italian companies.
Therefore, it was said, the requisition was no breach of the rights conferred by the FCN Treaty, because its "invalidity . . .as ascertained by the
decision of the Prefect of Palermo, does not alter the fact that it was issued
by the competent authority on a regular legal basis". But, in the Chamber's view, the reference to conformity with "the applicable laws and regu-