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Measures of Execution against the Property of Foreign States: the Law and Practice in Italy*

Published online by Cambridge University Press:  07 July 2009

Luigi Condorelli  and
Luigi Sbolci
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Extract

The Italian experience concerning the possibility of subjecting the property of foreign states to measures of execution, is of very considerable interest from a comparative point of view. Italy is, in fact, one of the few countries to have adopted, many years ago, legislative measures of a fairly detailed and original nature to regulate this issue (contained in the Executive Order of 30 August 1925 n. 1621 which was subsequently enacted (with various amendments) as the Law of 15 July 1926 n. 1263). This Law is of interest, on the one hand, because of the insights which it gives into the approach which Italy has chosen to adopt in the interpretation of the content of the rules of international law governing the immunity of foreign states from measures of execution (and jurisdiction); and, on the other hand, because it is designed in such a way as to free the Italian judiciary from the need to venture into the quicksands of the principles of international law governing this subject; its ultimate aim, in fact, is to transfer from the judiciary to the Government the responsibility of deciding whether measures of execution against the property of foreign states should be allowed or not.

Type
Articles
Information
Netherlands Yearbook of International Law , Volume 10 , December 1979 , pp. 197 - 231
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Copyright © T.M.C. Asser Press 1979

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References

1. For the first decisions of the Italian courts: see: Cass. Florence, 28 July 1885, Giurisprudenza Italiana (1886) I, 1 p. 486; Cass. Naples, 16 March 1886, Giurisprudenza Italians (1886) I, 1 p. 228, Cass. Rome, 12 October 1893, Giurisprudenza Italiana (1893) I, 1 p. 1213. For cases contemporary with the decision studied in this section, see: Cass., in full session, 12 June 1925, Giurisprudenza Italiana (1925) I, 1 p. 1024. For decisions by the Belgian courts, see the comprehensive references in De Visscher, P. and Verhoeven, J., “L'immunité de juridiction de l'Etat étranger dans la jurisprudence belge et le projet de Convention du Conseil de l'Europe”, in L'immunité de juridiction et d'exécution des Etats; à propos du projet de Convention du Conseil de l'Europe; Actes du colloque conjoint des 30 et 31 Janvier 1969 (Brussels: Editions de l'lnstitut de Sociologie 1969)Google Scholar (hereafter, Actes du colloque conjoint) p. 38 n. 8.

2. See in this context the recent court decisions in 2 IYIL (1976) pp. 320, 328 et seq.

3. Cass., 13 March 1926, Giurisprudenza Italiana (1926) I, 1 p. 774. The Court of Appeal of Lucca reached a similar conclusion in its decision of 14 March 1887 in which it held that a foreign state which is being sued is subject to the same conditions as are applied under Italian case-law to the national State: this means that measures of execution and sequestration can be enforced against the property of the state where such property falls within the private domain of the state. Foro Italiano (1887) I p. 474 et seq.

4. For this criticism see Amati, R. “Il sequestro conservative contro gli Stati esteri e la giurisdizione italiana” (Sequestration against foreign states and Italian jurisdiction), Giurisprudenza Italiana (1926) p. 773 et seqGoogle Scholar. For a commentary on this decision see also Siotto-Pintor, M., “La dottrina dell'immunità degli Stati esteri dalla giurisdizione interna e la recentissima giurisprudenza italiana” (The doctrine of the immunity of foreign states from municipal jurisdiction and the most recent decisions of the Italian courts) in Festgabe für Fritz Fleiner zum 60. Geburtstag 24 Januar 1927 (Tübingen 1927) p. 237.Google Scholar

5. Practice and doctrine tend to make a distinction between immunity from jurisdiction and immunity from execution. As to practice, cf., the letter of 9 March 1959 from the legal adviser to the US Department of State, Becker, to the US Attorney General Rogers, in Whiteman, M., ed., Digest of international law, vol. 6 (Washington: Department of State publication 1968) p. 709Google Scholar; Foreign Sovereign Immunities Act of 21 October 1976, 15 ILM (1976) p. 1388 et seq.; As to doctrine, cf., Lalive, J.F., “L'immunité de juridiction des Etats et des organisations Internationales”, 84 Hague Recueil (1953), vol. 3 p. 274Google Scholar; Venneman, R., “L'immunité d'exécution de l'Etat étranger”, in Actes du colloque conjoint p. 121.Google Scholar

6. The Institut de Droit International at its session in Hamburg on 11 September 1891, approved a “Projet de réglement international sur la compétence des tribunaux dans le procès contre les Etats, souverains ou chefs d'Etat étrangers”, (Draft international agreement on the competence of courts in suits against foreign states, foreign sovereigns and heads of state) of which Art. 2 provided that “equally exempt from any form of sequestration is the movable and immovable property belonging to a foreign state, which, with the approval, express or implied, of the state in whose territory it is situated is used in the public service of the foreign state”. For the complete text of the resolution see Wehberg, H., ed., Tableau général des Résolutions de l'Institut de Droit International (1873–1956) (Basle: Editions juridiques et sociologiques S.A. 1957) p. 14 et seq.Google Scholar

7. In this connection, cf., the report by Lemonon, M.E., L'immunité de juridiction et d'exécution forcée des Etats étrangers (Brussels: Goemaie 1939)Google Scholar edited by the Institut de Droit International; idem, “L'immunité de juridiction et d'exécution forcée des Etats étrangers. Rapport et projet de Résolutions définitifs”, 44 Annuaire de l'Institut de Droit international (1952), I p. 28Google Scholar; see also, the resolution adopted by the Institut de Droit International at its Conference in Aix-en-Provence on 30 April 1954 in H. Wehberg, op.cit., p. 17.

8. See De La Grange, A. Klitsche, “Giustizia e ministro della giustizia nei processi contro gli Stati stranieri (il caso Castiglioni-Jugoslavia)” (Justice and the Minister of Justice in actions against foreign states (the Castiglioni-Jugoslavia case) Rivista trimestrale di diritto processuale civile (1953) p. 1153 et seq.Google Scholar; Chiovenda, G., Istitutizioni di diritto processuale civile (Institutions of civil proceedings) (Naples: Jovene 1934) vol. 2 p. 37.Google Scholar

9. See Provinciali, R., L'immunità giurisdizionale degli Stati stranieri (Immunity from jurisdiction of foreign states) (Padua: Cedam 1933) p. 168 n. 230.Google Scholar

10. An Executive Order (Decreto Legge) is a normative act with the force of law emanating directly from the Government in urgent cases, following a summary procedure. This form of legislation is also provided for in the present Constitution (of 1948) in Art. 77, paras. 2 and 3: “When, in exceptional cases of urgency and necessity, the Government issues, on its own responsibility, provisional measures having force of law, it shall, on the same day, submit them for conversion into Law to the Chambers [of Parliament] which, even if they have been dissolved, are expressly summoned for that purpose and shall meet within five days. Decrees lose effect as of the date of issue if they are not converted into law within sixty days of their republication. Parliament may, however, approve laws to regulate legal questions arising out of decrees not yet converted into law”.

11. The Executive Order consisted of two articles. Art. 2 determined the entry into force of the Order itself, and provided for it to be submitted to Parliament for enactment.

12. The Minister was Alfredo Rocco, Professor of Law at the University of Rome. The report is reprinted in Rivista di diritto internazionale (1926) p. 159 et seqGoogle Scholar. and in Rivista di diritto processuale civile (1926) I p. 1 et seq.Google Scholar

13. It has been observed that Minister Rocco's report was against the theory of a general immunity in appearance only, since it did recognize the very widespread application of the rule of immunity on the part of other states, and the necessity to avoid friction in friendly relations with foreign states; “If, therefore, the general attitude of Rocco is contrary to the theory of immunity, this is not in fact true of the reasoning behind it. So that the Executive Order of 30 August 1925 n. 1621… would appear to represent one of those enactments intended to codify the principle of international law as regards immunity within the national legal framework (even if only in relation to acts of execution and attachment)”. See R. Provinciali, op.cit., p. 166.

14. This is still a quotation from the Minister's report.

15. The most important passages from this report appear in Rivista di diritto internazionale (1926) p. 407 et seqGoogle Scholar. For the entire text see “Atti parlamentari”, Senato, Leg. XXVII, doc. n. 279.

16. (Tomaso Perassi), T.P., “Atti esecutivi sopra beni di Stati esteri nel Regno” (Measures of execution on the property of foreign states within the Kingdom), Rivista di diritto internazionale (1926) p. 158 et seqGoogle Scholar. See also on the same point M. Siotto-Pintor, loc.cit., p. 242 et seq.

17. This transfer of competence is justified as follows in the report of the Central Bureau of the Senate: “But who is to establish whether a foreign state grants reciprocity or not? Such a procedure will most often require an examination of the facts which the courts are unable to carry out with any precision. Such information can only obtained from our diplomatic and consular representatives. It is not enough that there exists in a foreign legal system an analogous rule of law, nor that, by virtue of the established case-law, courts recognize immunity from jurisdiction in principle. We must know how this rule is applied, or whether the courts have not admitted exceptions which are unfavourable to our Country. Moreover, there may be foreign states in which the Italian State possesses no property and where this has never been nor can be the passive subject of a suit …” T. Perassi, on the other hand, in his commentary on the Minister's report, maintained that reciprocity could be said to exist only if the foreign state itself also made execution of judgment against the property of the Italian State subject to Government authorization. See T.P., loc.cit., p. 162.

18. See infra s. 7.

19. As to the nature of these actions see infra s. 9.

20. See infra ss. 9 and 10.

21. For the most recent case law see: Cass. 7 February 1975 no. 468, Rivista di diritto internazionale privato e processuale (1976) p. 351 et seqGoogle Scholar. For the theory see: Crivellaro, A. “Non-riconescimento ed efficacia di atti stranieri non legislativi” (Non-recognition and the efficacy of foreign non-legislative actions). Rivista di diritto internazionale privato e processuale (1976) pp. 328, 329Google Scholar; Gaja, G., note in 2 IYIL (1976) p. 314 et seqGoogle Scholar. with references to case law and doctrine.

22. Cf., Jaffe, L., Judicial Aspects of Foreign Relations, in particular of the Recognition of Foreign Powers (Cambridge: Harvard University Press 1937)Google Scholar; Mann, F.A., “Judiciary and Executive in Foreign Affairs”, 29 Transactions of the Grotius Society (1944) p. 143 et seq.Google Scholar; Henkin, L., Foreign Affairs and the Constitution (New York: Norton and Company 1975).Google Scholar

23. Cf., J.F. Lalive, loc.cit., p. 243.

24. See supra s. 2 n. 1.

25. Cf., Quadri, R., La giurisdizione sugli Stati stranieri, (Jurisdiction over foreign states) (Milan: Giuffré 1941) p. 121.Google Scholar

26. Cf., M.E. Lemonon, loc.cit., p. 21; Brownlie, I., Principles of public international law (Oxford: Clarendon Press 1973) p. 661Google Scholar; Bowett, D.W., The law of international institutions (London: Stevens and Sons 1975) p. 311Google Scholar; Mazzeschi, R. Pisillo, “Immunità giurisdizionale delle organizzazioni internazionali e costituzione italiana” (Immunity from jurisdiction of international organizations and the Italian Constitution), Rivista di diritto internazionale private e processuale (1976) p. 499Google Scholar. See also infra s. 10.

27. See R. Provinciali, op.cit, p. 167; Luzzatto, R., Start stranieri e giurisdizione nazionale (Foreign states and national jurisdiction) (Milan: Giuffré 1972) p. 304 n. 62.Google Scholar

28. It has been maintained that the Law of 15 July 1926 would only apply to the sequestration of, or measures of attachment against goods; in particular it should be considered inapplicable to: execution of a legally binding court judgment; execution by levy upon movable or immovable property; execution in the form of an obligation to perform or refrain from an act; the injunctionary measures known as “denunzia di nuova opera” (by means of which application is made to a court for an order prohibiting a new action to be taken which could result in an infringement of the applicant's rights) or as “denunzia di danno temuto” (by means of which application is made to a court for an order specifying an arrangement so as to avoid an injury which is feared as a possible consequence of a certain event); see in this connection A. Klitsche De La Grange, loc.cit., pp. 1155, 1169. Cf., R. Luzzatto, op.cit., p. 304 n. 62. This author does not share the opinion of Klitsche De La Grange concerning execution carried out with the authority of a legally binding court judgment but concurs with him that the law of 15 July 1926 would not apply to the measures known as “denunzia di nuova opera” and as “denunzia di danno temuto”. Contra, R. Provinciali, op.cit., p. 167; T.P. (Tomaso Perassi), loc.cit., p. 162. The application of the Law of 15 July 1926 to measures of execution to enforce a legally binding court judgment is confirmed by practice. See Council of State, 4th Chamber, 13 October 1966 n. 669, Consiglio di Stato (1966) I p. 1635.

29. As to the notion of the executive force of an administrative act under Italian law, see Virga, P., Il provvedimento amministrativo (The administrative act) (Milan: Giuffré 1972) p. 339 et seq.Google Scholar

30. See Bernardini, A., “La reciprocità rispetto agli atti esecutivi e cautelari contro Stati esteri” (Reciprocity in relation to measures of attachment and execution against foreign states) Rivista di diritto internzaionale (1960) p. 451Google Scholar; R. Luzzatto, op.cit., p. 300; A. Klitsche De La Grange, loc.cit., p. 1157; Tribunal of Rome, 4 September 1958, loc. cit. p. 396. Contra Rome Court of Appeal, 13 September 1952 (presidential decree) Rivista trimestrale di diritto e procedura civile (1953) p. 1152Google Scholar. See also Court of Cassation in full session 30 September 1968 n. 3032, Rivista di diritto internazionale privato e processuale (1969) p. 246.Google Scholar

31. See infra s. 8.

32. See the order of the examining magistrate of the Tribunal of Milan, 19 May 1960 quoted in the decision of the Council of State, 4th Chamber, 24 February 1961 n. 121, Consiglio di Stato (1961) I p. 565Google Scholar. See also, Tribunal of Rome, 4 September 1958, Diritto Marittimo (1959) p. 397, R. Luzzato, op.cit., p. 306. Contra, A. Klitsche De La Grange, loc.cit., p. 1165.

33. See the decision of the Court of Cassation, 30 September 1968 no. 3032, cited supra n. 30.

34. Where silence is maintained, however, the interested party can force the State Administration to come out into the open, i.e., to give a concrete reply one way or the other, since the Minister can be forced to act by applying the general rules and procedure of Italian administrative law.

35. See R. Luzzatto, op.cit., p. 301; A. Klitsche De La Grange, loc.cit., p. 1155.

36. For an account of the earliest practices of this kind, see A. Klitsche De La Grange, loc.cit., p. 1155. The decree in relation to the USA studied infra s. 8, represents a very recent example.

37. See for example, A. Klitsche De La Grange, loc.cit., p. 1177; Di Leo, F., “Della giurisdizione cautelare su navi di Stati stranieri” (Concerning jurisdiction related to sequestration of vessels of foreign states), Diritto marittimo (1959) p. 322 et seq.Google Scholar

38. The Municipality of Venice was the owner of the land on which the British pavilion had been erected.

39. Art. 615 of the Code of Civil Procedure provides for execution to be opposed; the debtor can thus contest the right of the other party to proceed to execution.

40. This procedure is laid down in the Constitutional Law of 9 February 1948, n. 1, of which Art. 1 reads: “Any question as to the conformity with the Constitution of a Law or of an act having the force of Law, raised either ex officio by the judge or raised by one of the parties in the course of proceedings, and which the court does not consider to be obviously unfounded, shall be referred for judgment to the Constitutional Court”. As to doctrine on this point see, for example, Mortati, C., Istitutizioni di diritto publico (Institutions of public law) (Padua: Cedam 1976) vol. 2 p. 1382 et seq.Google Scholar

41. The order referring the case, dated 25 August 1959, appears in the Gazzetta Ufficiale della Republica Italiana (Official Gazette) n. 295 of 5 December 1959; it is reprinted in Giurisprudenza costituzionale (1959) p. 802.

42. In fact, the Tribunal of Venice suggested a further way in which the 1926 Law might not conform to the principles of the Constitution. In this specific case, the Law would have enabled the Government to sacrifice the private interests of the individual, thus violating Art. 42 of the Constitution which protects private property. But the Court was able to reject this argument without difficulty, by pointing out that rights of ownership were not in issue in this case.

43. The text of the Court's decision of 13 July 1963 n. 135 is reported in Rivista di diritto internazionale (1963) p. 451 et seq.Google Scholar

44. See for example, Giuliano, M., Diritto internazionale (International Law) (Milan: Giuffré 1974) vol. 2 p. 494Google Scholar; Sucharitkul, S., Immunities of foreign states before national authorities, Hague Recueil, 149, 1976, I p. 185.Google Scholar

45. For an example of this see infra s. 10. Similar criticisms have been made about the manner in which the Constitutional Court deals with international customary law by Gaja, G., “Sull' accertamento delle norme Internazionali Generali da parte della Corte Costituzionale” (Concerning the establishing of general rules of international law by the Constitutional Court). Rivista di diritto internazionale (1968) p. 315 et seq.Google Scholar

46. Draft Convention and Comment on Competence of Courts in Regard to Foreign States, prepared by the Harvard Law School, 26 AJIL (1932), Suppl. p. 450 et seq. According to Art. 23 of this draft, it is permissible to enforce execution upon the property of a foreign state when it is a question of immovable property not being used in connection with diplomatic or consular activities or else when the property is being used for commercial or industrial activities.

47. Institut de Droit International, Tableau général des résolutions, 1876–1956 (Basle: Editions juridiques et sociologiques 1957) pp. 17, 18Google Scholar. The draft convention, adopted on 30 April 1954, during the Confernece at Aix-en-Provence, dealt with the problem of execution in Art. 5: “Measures of execution and sequestration shall not be enforced against the property of a foreign state, where this property is used in connection with governmental activities which are not related to any economic activity”.

48. See Detti, V., “Il diritto di azione e la Costituzione” (The right of action and the Constitution), Rivista di diritto processuale (1964) p. 116 et seqGoogle Scholar. See also, Trocker, N., Processo civile e Costituzione (Civil Process and the Constitution) Milan: Giuffré 1974) p. 235.Google Scholar

49. See supra s. 6. See also the declaration of Mr. Battaglia, a member of the Government, made before the Committee on Foreign Affairs of the House of Deputies on 15 October 1975. See 2 IYIL 1976 p. 419.

50. According to information from unofficial sources this happened in 1967 in relation to Ghana.

51. Mr. Pisapia, a Naples lawyer who was involved in the matter, kindly allowed us to peruse a decree, dated 3 March 1978, which simultaneously declared reciprocity and withheld authorization of execution against the property of the United States in Italy. The decree, which to this day has not been published in the Gazzetta Ufficiale, is reproduced, with commentary by Sbolci, L., in Rivista di Diritto Internazionale (1978) p. 949 et seqGoogle Scholar. According to A. Bernardin, loc.cit., p. 461, a further decree announcing reciprocity in relation to Greece, dated 4 July 1952, has also never been published. One may well wonder how many of these decrees exist … hidden away!

52. The existence of this decree is known thanks to a decision of the Council of State, which rejected an application contesting its validity; see Council of State, 4th Chamber, 13 October 1966, n. 699, Consiglio di Stato (1966) I p. 1631 et seqGoogle Scholar. A further case of authorization being withheld is that in relation to the USA mentioned in the preceding note.

53. Information supplied unofficially indicates that a decree granting authorization was issued in relation to Morocco in 1968, which would have enabled a sequestration order to be issued against certain Moroccan funds held by Air France.

54. These decrees are in fact published neither in the Gazzetta Ufficiale nor in the Bulletin issued by the Ministry of Justice.

55. This is what happened, for instance, in the case of Guerrato v. The United Kingdom. See Constitutional Court, 4 July 1963, n. 135. The fact, reported in this decision, that the private party finally agreed to abandon execution proceedings against the United Kingdom following an agreement with the Ministry for Foreign Affairs which had paid out an appropriate sum of money to this end, was not without its consequences. In a recent case (Federici v. the State of Japan), the private party involved, Mr. Federici, applied to the Council of State for annulment of the Government's decree refusing authorization for execution upon Japanese property in Italy, after this State had been ordered to pay a certain sum of money in a judgment which was legally binding. Federici claimed that the refusal was discriminatory by virtue of the fact that no indemnity had been paid to him. The agreement reached in settlement of the case involving the United Kingdom was rightly cited in support of the application.

In its decision of 13 October 1966 n. 669, Consiglio di Stato (1966) I p. 1631Google Scholar, the Council of State rejected the charge of discrimination in this particular case on the grounds discussed in s. 9 infra. But it also used the opportunity to rule out, in general, any obligation on the Government to discharge the debts of a foreign state against whose property it had refused to authorize execution; nor was there any obligation to pay compensation. In the Court's opinion, such an obligation existed only in relation to expropriations; where in cases other than expropriation the Government paid compensation to an individual (in the absence of any law obliging it to do so) it did so on the basis of “a purely discretionary power”.

It is hard to dispute the merits of this opinion, once one has accepted, as does the Constitutional Court, that the 1926 Law is not in breach of the Italian Constitution; nor need this prevent one from wishing to subscribe to the obiter dictum, which is also found in the same decision of the Council of State, that “this solution (compensation) may no doubt appear the most equitable …”. Indeed, if the public interest requires the interest of the individual to be sacrificed, even when this has been found worthy of protection by the courts, it would seem fair that the individual in question should not have to bear the full burden. In other words, compensation, which would represent a kind of division of sacrifice between the individual and the community which benefits thereby, would constitute no more than an elementary equitable solution.

See the following section, on the relationship between withholding authorization of execution and diplomatic protection of private interests.

56. The accuracy of this information is confirmed by the conspicuous absence of suits by foreign states: if measures of attachment or execution against the property of these states had been effectively pursued, this would surely have provoked them into opposing the same, and attempting to gain recognition from the courts of their immunity from execution.

57. Ministerial decree of 9 January 1953, published in the Gazzetta Ufficiale of 10 January 1953 no. 7. In the opinion of A. Klitsche De La Grange, loc.cit., p. 1158, this was the first decree in absolute terms, We should, moreover, note that no decree was necessary for court proceedings already under way when the law came out, since the transitional provision of the second pragraph of the 1926 Law clearly stipulated that “court proceedings in course may not be continued without the aforesaid authorization”.

58. The existence of reciprocity in relation to Yugoslavia was disputed by A. Klitsche De La Grange, loc. cit., p. 1158, et seq. This author maintains that the Yugoslavian government which framed the decree was not authorized to legislate on matters of civil procedure; the decree would thus be illegal and without effect. But this opinion is not convincing; the declaration of reciprocity is based on what occurs abroad in practice. The question of whether the provisions of foreign law are legitimate or not is of little consequence provided that they are usually applied.

59. Gazzetta Ufficiale 18 May 1960 n. 121. This decree cites Art. 24 no. 1 of the decree issued by the Republic of Argentina on 4 February 1968 no. 1285.

60. In Gazzetta Ufficiale 22 May 1962 n. 129 and 6 March 1963 n. 63 respectively. The two decrees refer to Arts. 1 and 3 of the Law no. XVIII of 1939 of the People's Republic of Hungary.

61. Gazzetta Ufficiale, 5 March 1965 n. 57. A series of decrees in relation to the same foreign state shows that the declaration of reciprocity is not made once and for all. It, therefore, does not represent a generally applicable document but is only valid in relation to the specific case for which the decree was issued. This is, moreover, perfectly normal, since it is not a question of making a universal comparison of two legal systems, but of establishing what treatment would be accorded to Italian property located within the territory of the foreign state concerned in a specific case with identical features. On this point see R. Luzzatto, op.cit., p. 300 et seq.

62. Gazzetta Ufficiale, 21 August 1953 n. 190.

63. Gazzetta Ufficiale, 4 July 1958 p. 159.

64. Gazzetta Ufficiale, 11 August 1958 n. 193.

65. Gazzetta Ufficiale, 27 July 1965 n. 183.

66. Gazzetta Ufficiale, 6 April 1968 n. 90.

67. Contra, Morelli, G., Diritto processuale civile internazionale (International law of civil procedure), (Padua: Cedam 1954) p. 198.Google Scholar

68. Loc.cit., p 414. See A. Bernardini, loc.cit, p. 463; F. Di Leo, loc.cit., p. 311; A. Klitsche De La Grange, loc.cit., p. 1162.

69. For the text of the Foreign Sovereign Immunities Act, 1976 see 15 ILM (1976) p. 1388 et seq. The question of measures of execution against the property of foreign states is dealt with in para. 1609.

70. See supra n. 51.

71. On this point see, for example, R. Luzzatto, op.cit., p. 307. Concerning political acts of the Italian Government which affect international relations, see Condorelli, L., “Acts of the Italian Government in International Matters Before Domestic Courts”, 2 IYIL (1976) p. 178 et seq.Google Scholar

72. See the decision of the Constitutional Court examined in s. 7 above. Similarly the Council of State, 13 October 1966, n. 669, loc.cit.

73. On this subject see Rivalta, M., La motivazione degli atti amministrativi in relazione al publico e privato interesse (Reasons stated for administrative acts in relation to private and public interests) (Milan: Giuffré 1960)Google Scholar; Vandelli, L., “Osservazioni sull'obbligo di motivazione degli atti amministrativi” (Remarks on the obligation to justify administrative acts), Rivista trimestrale di diritto e procedura civile (1973) p. 1595 et seq.Google Scholar

74. Under Italian law the grounds upon which the legality of an administrative act may be challenged are enumerated in Art. 26 of the Collected Legislation of the Council of State approved by the Royal Decree of 26 June 1924 n. 1054. This enumeration was confirmed by Art. 3 of the Law of 6 December 1971 n. 1034 which created the Regional Administrative Tribunals. According to these provisions, the grounds upon which an administrative act may be challenged are: violation of the law, lack of competence and ultra vires (misuse of power). The courts have distinguished various categories of misues, one of which is a failure to give adequate reasons.

75. See F. Di Leo, loc.cit., p. 324; A. Klitsche De La Grange, loc.cit., p. 1179 et seq.

76. See R. Luzzatto, op.cit., p. 309.

77. See in this connection the decision of the Council of State, 13 October 1966 n. 669, loc.cit.

78. This point of view was confirmed a contrario by the decision of the Council of State cited in the preceding note, which denied in the specific case the existence of discrimination, but by reference to the fact that this was a case of decrees issued at different times in relation to different foreign states. As to ultra vires as a result of discrimination, see P. Virga, op.cit., p. 429 et seq.

79. See supra n. 55.

80. In the decision examined in s. 7 supra.

81. In the case in question, the Council of State maintained that the Government, at the time when the decree withholding authorization of execution upon the property of Japan in Italy was issued, was in the process of acting to protect the interests of Mr. Federici via diplomatic channels; moreover at this time Italy's negotiations at an international level with Japan had still not miscarried. It was for these reasons, so far as one can understand, that the Council of State understandably refused to uphold his complaint.

It should, however, be noted that some years after the legal toing-and-froing had been brought to an end in this extremely complicated affair (at the expense, of course, of Mr. Federici), an international agreement was finally concluded between Italy and Japan in which Mr. Federici's claims were reasonably satisfied. In this case, then, diplomatic protection functioned quite well. Concerning this agreement see the commentary by Sacerdoti, G., “Indennizzi giapponesi per vittime di guerra italiane” (Japanese compensation for Italian war victims), Rivista di diritto internazionale (1976) pp. 230, 231.Google Scholar

82. See s. 3 supra and n. 12.

83. Cf., R. Luzzatto, op.cit, p. 308 (and n. 72).

84. See the text of this Treaty in 79 UNTS p. 171.

85. See the text of this Treaty in 217 UNTS p. 181.

86. See the text of this Convention in 516 UNTS p. 205 (Italy is a party to this Convention).

87. See the text of Arts. 2 and 3 of this Convention in 176 LNTS p. 199. (Italy is a party to the Convention).

88. For the text of the Convention, see 66 AJIL (1972) p. 923 et seq. For comment see: Vallée, Ch., “A propos de la convention européenne sur l'immunité des Etats”, Revue trimestrielle de droit européen (1973) p. 205 et seq.Google Scholar; Wiederkehr, M.O. “La convention européenne sur l'immunité des Etats”, 20 AFDI (1974) p. 294 et seq.Google Scholar; Kraft, Ch.M. “La Convention européenne sur l'immunité des Etats et son protocole additionnel”, ASDI (1975) p. 11 et seqGoogle Scholar. Italy has not yet ratified this Convention.