| I. | Substantive International Law - First Part |
| 2. | SOURCES OF INTERNATIONAL LAW |
| 2.1. | General Questions |
| 2.1.5. | Relation between the Sources of International Law |
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Elettronica Sicula S.p.A. (ELSI)
Judgment of 20 July 1989
I.C.J. Reports 1989, p. 15
[p. 42] The United States questioned whether the rule of the
exhaustion of local remedies could apply at all to a case brought under Article
XXVI of the FCN Treaty. That Article, it was pointed out, is categorical in its
terms, and unqualified by any reference to the local remedies rule; and it
seemed right, therefore, to conclude that the parties to the FCN Treaty, had
they intended the jurisdiction conferred upon the Court to be qualified by the
local remedies rule in cases of diplomatic protection, would have used exess
words to that effect; as was done in an Economic Co-operation Agreement between
Italy and the United States of America also concluded in 1948. The Chamber has
no doubt that the parties to a treaty can therein either agree that the local
remedies rule shall not apply to claims based on alleged breaches of that
treaty; or confirm that it shall apply. Yet the Chamber finds itself unable to
accept that an important principle of customary international law should be held
to have been tacitly dispensed with, in the absence of any words making clear an
intention to do so. This part of the United States response to the Italian
objection must therefore be rejected.
[p. 86 S.O. Oda] That general principle of law concerning the rights
or status of shareholders, which underlies not only Italian company law but also
the company law of some other civil law countries, may not be altered by any
treaty aimed at the protection of investments unless that treaty contains some
express provision to that end. A question which should therefore be asked is
whether Italy and the United States agreed, by means of the 1948 FCN Treaty or
the 1951 Supplementary Agreement, to modify such a general principle of law or
to grant any additional rights to foreign shareholders. It is difficult to see
how an affirmative answer can be given to this question.
