Chamber that there clearly remained some remedy which Raytheon and
Machlett, independently of ELSI, and of ELSI's trustee in bankruptcy,
ought to have pursued and exhausted. Accordingly, the Chamber will
now proceed to consider the merits of the case.
64. Paragraph 1 of the United States final submissions claims that :
"(1) the Respondent violated the international legal obligations
which it undertook by the Treaty of Friendship, Commerce and
Navigation between the two countries, and the Supplement
thereto, and in particular, violated Articles III, V, and VI1 of the
Treaty and Article 1of the Supplement".
It is necessary therefore to examine these Articles of the FCN Treaty and
the Supplementary Agreement, against the conduct which is said to have
been a violation of the obligations set out in these Articles. In doing so, it
will be kept in mind that although the stated purposes of the FCN Treaty
were those normally to be found in treaties of that kind, nevertheless a
purpose of the Supplementary Agreement, which is to "constitute an integral part" of the FCN Treaty, was to give "added encouragement to investments of the one country in useful undertakings in the other country".
65. The acts of the Respondent which are thus alleged to violate its
treaty obligations were described by the Applicant's counsel in terms
which it is convenient to cite here :
"First, the Respondent violated its legal obligations when it unlawfully requisitioned the ELSI plant on 1 April 1968 which denied the
ELSI stockholders their direct right to liquidate the ELSI assets in an
orderly fashion. Second, the Respondent violated its obligations
when it allowed ELSI workers to occupy the plant. Third, 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-in-process had
al1 been acquired by ELTEL. Fourth and finally, the Respondent
violated its obligations when it interfered with the ELSI bankruptcy
proceedings, which allowed the Respondent to realize its previously
expressed intention of acquiring ELSI for a price far less than its
fair market value."
66. The most important of these acts of the Respondent which the
Applicant claims to have been in violation of the FCN Treaty is the
requisition of the ELSI plant by the Mayor of Palermo on 1 April 1968,
which is claimed to have frustrated the plan for what the Applicant terms
an "orderly liquidation" of the Company as set out in paragraphs 22-25