| III. | The International Court of Justice |
| 3. | THE PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE |
| 3.7. | Evidence |
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Elettronica Sicula S.p.A. (ELSI)
Judgment of 20 July 1989
I.C.J. Reports 1989, p. 15
[pp. 46-47] With such a deal of litigation in the municipal courts
about what is in substance the claim now before the Chamber, it was for Italy to
demonstrate that there was nevertheless some local remedy that had not been
tried; or at least, not exhausted. This burden Italy never sought to deny.
[p. 47] Where the determination of a question of municipal law is
essential to the Court's decision in a case, the Court will have to weigh the
jurisprudence of the municipal courts, and "If this is uncertain or
divided, it will rest with the Court to select the interpretation which it
considers most in conformity with the law" (Brazilian Loans, P.C.I.J.,
Series A, Nos. 20/21, p. 124). In the present case, however, it was for
Italy to show, as a matter of fact, the existence of a remedy which was open to
the United States stockholders and which they failed to employ. The Chamber does
not consider that Italy has discharged that burden.
[p. 62] The Chamber has no need to go into the question of the
extent to which it could or should question the validity of a finding of Italian
law, the law governing the matter, by the appropriate Italian courts. It is
sufficient to note that the conclusion above, that the feasibility of an orderly
liquidation plan is not sufficiently established, is reinforced by reference to
the decision of the courts of Palermo on the claim by the trustee in bankruptcy
for damages for the injury caused by the requisition. Whether regarded as
findings of Italian law or as findings of fact, the decisions of the courts of
Palermo simply constitute additional evidence of the situation which the Chamber
has to assess.
