The Elsi Case | United States v. Italy case brief

The Elsi Case (United States v. Italy ICJ 1989; p. 303)

• Italy seizes the plant (belonging to the US) claiming debts, and labor disputes. Palermo mayor wanted to protect his citizens.
• US says Italy violated FCN (Friendship, Commerce, and Navigation) treaty (1948-now called the FCEstablishment treaty) by not letting the US organize, control, manage its corporation.
• Ct says no violation b/c it was really on its way to bankruptcy—hard to show appreciable damage.
• This was a chamber case (see below). US and Italy wanted Western Judges that wld be more familiar w/ the issues (bankruptcy, labor, etc.)
• Ct took this case even tho it really involved private parties—the countries went to ct on behalf of private parties. ( an espousal case).
• N. 1, p. 312—cynical attitude: The US had just decided not to go in the Nicaragua Case and had just withdrawn compulsory jurisdiction. So why bring this case? Muth: doesn’t really know why. It is a fairly minor case not really a lot of $--US didn’t take the Amerada Hess to the ct and it was more impt!
• Jurisdiction is governed by statute (must show exhaustion of local remedies and denial of justice.) (Nottebohm and Barcelona involve the same concept)
• Possibly US took case to help insure better intl climate for US investments.
• Dissent (US judge)—very rare that a judge votes against his own country.
• Other venues available for Raytheon:
  • Municipal court
  • Arbitration
  • Regional Court if one exists (esp w/ quasi-public issues like AM&S)
• One issue in reforming the court: Shld private parties be able to bring cases?
• N. 3, p. 313: Cld have a halfway system where a municipal ct refers for an advisory opinion if it thinks it is a more intl issue. It is very expensive, tho, to litigate at the ICJ (but this type of system wks well in Europe).
• N. 4, p. 313-There are many mechanism for dispute resolution (FOR MY JOURNAL ARTICLE!!)
• Issue for the future: Shld there be more universal tribunals or more specialized/regional ones? Guillame article says there too many of the latter and shld unify these cts (Muth Agrees, but it wld still be difficult, he says).