Sunday, March 25, 2012

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  • N. 1, p. 312—cynical attitude: The US had just decided not to go in the Nicaragua Case and had just withdrawn compulsory jurisdiction.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).

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