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Foreign Investment in the International Court of Justice: The ELSI Case

Published online by Cambridge University Press:  27 February 2017

F. A. Mann
F. A. Mann*
Affiliation:
American Society of International Law
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Type
Notes and Comments
Information
American Journal of International Law , Volume 86 , Issue 1 , January 1992 , pp. 92 - 102
Copyright
Copyright © American Society of International Law 1992

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References

1 Barcelona Traction, Light & Power Co. (Second Phase) (Belg. v. Spain), 1970 ICJ Rep. 3 (Judgment of Feb. 5), discussed in particular by Briggs, Barcelona Traction: The Jus Standi of Belgium, 65 AJIL 327 (1971); and F. A. Mann, The Protection of Shareholders’ Interests in the Light of the Barcelona Traction Case, 67 AJIL 259 (1973), reprinted in Further Studies in International Law 217 (1990) [hereinafter Further Studies].

2 Elettronica Sicula S.p.A. (elsi), Judgment (U.S. v. Italy), 1989 ICJ Rep. 15 (Judgment of July 20), discussed by Seidl-Hohenveldern, ELSI and Badger: The Two Raytheon Cases, 26 Rivista di Diritto Internazionale Privato e Processuale 261 (1990); Stern, La Protection diplomatique des investissements internationaux: De Barcelona Traction à Elettronica Sicula ou les glissements progressifs de I’analyse, 117 Journal du Droit International 897 (1990); and Note, The Case of Elettronica Sicula S.p.A.: Toward Greater Protection of Shareholders’ Rights in Foreign Investments, 29 Colum. J. Transnat’l L. 215 (1991). The case is summarized in 84 AJIL 249 (1990).

3 ELSI, 1989 ICJ Rep. at 23–24, para. 13.

4 Id. at 24, para. 15.

5 Id. at 30, para. 27.

6 Id. at 32, para. 30.

7 Id. at 33, para. 32.

8 Id. at 38–39, para. 41.

9 See text at note 12 infra.

10 1989 ICJ Rep. at 35–36, para. 36.

11 Id. at 37–38, paras. 38–40.

12 Id. at 31, 37, 38, paras. 28, 38, 40.

13 Id. at 39, para. 42.

14 Id. at 39, 76, paras. 43, 127.

15 Id. at 39, para. 43.

16 Id. at 40–41, para. 46.

17 Id. at 34, para. 33.

18 Id. at 103 (quoting Court of Appeal of Palermo) (Schwebel, J., diss. op.).

19 1989 ICJ Rep. at 39, para. 43. This is odd, because after the order for bankruptcy was made, the deprivation of the use and possession of the plant and assets could hardly cause loss.

20 Id. at 21, para. 10 (quoting the Reply of the United States). This is one of the few occasions when compound interest was claimed. On this problem, see F. A. Mann, Compound Interest as an Item of Damage in International Law, 21 U.C. Davis L. Rev. 577 (1988), reprinted in Further Studies, supra note 1, at 377.

21 See, e.g., 1989 ICJ Rep. at 28–29, 34, 54, paras. 23, 33, 82.

22 Id. at 19, para. 8.

23 Id. at 19, para. 8, and 17.

24 Id. at 19, para. 8.

25 Fortunately, the oral arguments were printed in three big volumes and a large portion of the facts can be gathered from them.

26 1989 ICJ Rep. at 26, para. 19.

27 See text at note 12 supra.

28 1989 ICJ Rep. at 44, para. 56.

29 Id. at 75–77, paras. 127–29.

30 See, e.g., Cook v. Sprigg, 1899 App. Cas. 572. Notwithstanding the restraint imposed upon him by his office at the Court, Mr. Thirlway, The Law and Procedure of the International Court of Justice 1960–1989, 60 Brit. Y.B. Int’l L. 1, 117 (1989), seems to regard it as “unusual” that an illegality under municipal law should not also constitute a breach of international law.

31 Treaty of Friendship, Commerce, and Navigation, Protocol, Additional Protocol, and Exchange of Notes, Feb. 2, 1948, Italy–United States, 63 Stat. 2255, TIAS No. 1965, 79 UNTS 171.

32 The United States also invoked a fourth provision of the Treaty (id.), Article VII, which, to put it shortly, protects the right to own and dispose of immovable property or interests therein. The provision obviously failed to carry the matter further and the Chamber disposed of the contention very briefly (1989 ICJ Rep. at 79–81, paras. 132–35). It is, however, noteworthy that the United States contended that the cited phrase was “sufficiently broad to include indirect ownership of property rights held through a subsidiary that is not a United States corporation” (id. at 79, para. 132). The Chamber expressed “some sympathy with the contention of the United States, as being more in accord with the general purpose” of the Treaty (id.). It may be that in other cases this (tentative) view may have some value.

33 For a complete list, see F. A. Mann, The Legal Aspect of Money 524 n.57 (4th ed. 1982).

34 1989 ICJ Rep. at 52, para. 75.

35 Id., para. 76.

36 Id. at 62, para. 101.

37 Id. at 56, para. 85.

38 Id. at 87–88 (Oda, J., sep. op.).

39 A Protocol to the Treaty, supra note 31, in paragraph 1, extended the provisions of Article V(2) to interests (or as the Italian text says, to rights) held indirectly in property which is taken.

40 See B. A. Wortley, Expropriation in Public International Law 29 (1959), who does not hesitate to treat requisition as expropriation; it occurs “when the modern State … secures property and services for the satisfaction of urgent needs.” He adds that “it is the urgency of the State’s need that has been adduced to explain what is often the ex post facto nature of the payment.”

41 1989 ICJ Rep. at 71, para. 119.

42 Id.

43 Id. at 56, para. 85.

44 See id. at 69, para. 116.

45 Id. at 88 (Oda, J., sep. op.).

46 1989 ICJ Rep. at 76, para. 129.

47 See text at note 15 supra.

48 1989 ICJ Rep. at 47, para. 62.

49 The Italian argument reminds the reader of the Spanish argument in the Barcelona Traction case, on which the Court, it will be remembered, did not pronounce but which led to a lively debate between Professor Malintoppi (1970 ICJ Pleadings (2 Barcelona Traction: New Application) 272; 3 id. at 791; 9 id. at 557; 10 id. at 589) and Professor Rolin (3 id. at 600, 976; 8 id. at 568; 10 id. at 314).

50 1989 ICJ Rep. at 42, para. 50.

51 Id.

52 See text at note 16 supra.

53 1989 ICJ Rep. at 44, para. 54. The reference to “desultory” exchanges is perhaps a little odd. There was a single reply by Italy, which was given more than four years after the United States transmitted its original note.

54 United States ex rel. Lujan v. Gengler, 510 F.2d 62, 67 (2d Cir. 1975) (emphasis added); United States v. Reed, 639 F.2d 896, 902 (2d Cir. 1981).