By HOUSTON PUTNAM LOWRY (fn*) AND PETER W. SCHROTH (fn**)
Two significant statutes relating to international law were enacted in
Connecticut during 1990, and at least one notable judicial decision relating to
international law was handed down by a Connecticut Superior Court(fn1) This
article includes a brief report on the congressional legislation implementing
the Inter-American Arbitration Convention because the Connecticut Bar
Association's Section of International Law and World Peace played a leading role
in securing the enactment of that statute. In addition, because this is the
first time the CONNECTICUT BAR JOURNAL has included international law in its
annual survey issues, we begin with a brief recitation of some significant
Connecticut developments in international law that are recent, but prior to
In January, 1991, the judiciary Committee of the General Assembly began consideration of an (as yet unnumbered) omnibus bill entitled "An Act Concerning International Obligations and Procedure," which, if passed, will affect many areas of the law and provide the basis for a much longer article in next year's survey.
I. LATE 1980's DEVELOPMENTS
State law is a minor, but nevertheless important, part of international law, and Connecticut is more advanced than most states in adopting modem statutes in this area. Probably the most important Connecticut statutes on international law from the period 1987 to 1989 are:
A. The Uniform International Wills Act(fn2)
The Uniform International Wills Act provides an alternative set of standards for formal validity of wills, so that a will satisfying either the requirements for an international will or the requirements of other Connecticut laws relating to formal validity (or both, which is advisable and not difficult) will be recognized in Connecticut. Although only a handful of other U.S. states recognizes international wills (unless, of course, their conflict of laws rules point to a jurisdiction whose statutes provide for the validity of international wills), as of January, 1991, the Convention Providing a Uniform Law on the Form of an International Will (fn3) is in force in eight countries.(fn4)
B. The Uniform Foreign-Money Judgments Recognition Act(fn5) and the Uniform Foreign-Money Claims Act(fn6)
As of January, 1991, the Uniform Foreign-Money Judgments Recognition Act has been adopted in eighteen states and the Uniform Foreign-Money Claims Act in five states. The former Act requires that judgments of foreign courts be given treatment equivalent to the constitutional full faith and credit given to judgments of the courts of other U.S. states, without any requirement of reciprocity, but subject to certain statutory conditions relating to finality, due process, jurisdiction and, in the Connecticut courts' discretion, adequate notice, lack of fraud, consistency with public policy, etc.(fn7) The latter Act authorizes judgments and arbitration awards in currencies other than United States dollars and sets forth procedures for dealing with currency translation. These statutes are discussed further in Part IV infra.
C. The UNCITRAL(fn8) Model Law on International Commercial Arbitration(fn9)
The UNCITRAL Model Law, the result of an international conference in 1985, has had a major influence in modernizing and harmonizing the law relating to international commercial arbitration throughout the world. As of January, 1991, it was in force throughout Canada (both as federal law and as provincial law), in at least one country on each continent except South America, and in the states of Connecticut, California, Florida, Georgia and Texas.
II. INTERNATIONAL CHILD SUPPORT RESOLUTION
During its February, 1990, session, the General Assembly adopted House Joint Resolution No. 3, a strongly worded resolution addressing the problem of obtaining child and spousal support when the parties are in different countries. For example, a parent living in France may not be paying the court-ordered child support for a child living in Connecticut. This is an increasing problem as the population becomes more mobile and divorce more common.
The resolution urges the United States to become a party to the 1956 United Nations ECOSOC(fn10) Convention on the Recovery Abroad of Maintenance Orders(fn11) and the 1973 Hague Convention on the Recognition and Enforcement of Maintenance Obligations.(fn12) The resolution was supported before the General Assembly by Connecticut's Attorney General and the Connecticut Bar Association's Section of International Law and World Peace.
The Hawaiian Legislature adopted an identical resolution based on House Joint Resolution No. 3,(fn13) and the Oregon Bar Association adopted a similar resolution in 1990.(fn14) The Connecticut resolution was discussed favorably in the September, 1990, issue of State Legislatures magazine, published by the National' Conference of State Legislatures.(fn15) Connecticut Representative Barbara B. Kennelly introduced a similar resolution in the 101st Congress;(fn16) her resolution was co-sponsored by fifty other members of the House of Representatives, although it was not acted upon before Congress adjourned.
An interesting aspect of the Connecticut resolution is its request that Congress allow Connecticut to become a party to these conventions directly if the United States does not become a party for the entire country. This is a request for congressional consent under the International Compact Clause of the United States Constitution,(fn17) which apparently has never before been used.
III. DETERMINATION OF FOREIGN LAW
The Connecticut General Assembly enacted Substitute House Bill 5664 as Public Act 90-19, "An Act Concerning the Determination of Foreign Law and Judicial Notice of Certain Acts, Regulations and Ordinances."(fn18) This law addresses two topics: determination of foreign law and judicial notice of Connecticut law.
This law modernizes Connecticut's jurisprudence concerning proof of foreign law, including both the laws of another state and those of another country. While Connecticut's laws on this topic were considered a model for the country in the 1930's, they failed to keep pace with the judicial trend allowing greater latitude in proving foreign law. This portion of the Act(fn19) was modelled after Federal Rule of Civil Procedure 44.1 and some model laws prepared by the National Conference of Commissioners on Uniform State Laws.(fn20)
The presumption that printed books and pamphlets purporting to be the statutes of other states of the United States are proof of that law is abolished.(fn21) The court may use whatever relevant material it chooses, whether or not it is submitted by a party, and whether or not that material is admissible under the rules of evidence.(fn22) This rule makes sense as more and more legal materials are published and become generally available. The new statute makes it clear that determination of foreign law is a question of law for the court and not a question of fact for the jury.(fn23)
This Act also modernizes Connecticut's laws concerning legislative acts of Connecticut and its political subdivisions. General and special acts of the state now are to be judicially noticed; in addition, courts are to take judicial notice of any state regulations without the requirement that they be authenticated by the issuing agency.(fn24) The prior authentication requirement makes no sense now that regulations are collected and published by the Secretary of the State.
This Act reverses previous Connecticut law, which held that regulations and orders of local boards and agencies would not be judicially noticed. The fine line between a municipal ordinance and a municipal regulation is abolished, requiring the court to take judicial notice of both;(fn25) this, too, follows the modern trend.
IV. FISKE, EMERY & ASSOC. V. AJELLO(fn26)
Plaintiff Fiske, Emery & Associates, a Montreal law firm, was retained by defendants William R. Ajello and Beverly Scala to perform legal services in Quebec. The parties agreed to submit the plaintiff's account for professional services to arbitration by the arbitration committee of the Quebec Bar, which decided that the defendants were liable to the plaintiff for Can. $18,544.03.
The plaintiff applied for and was granted homologation [confirmation] of the arbitration decision by the Quebec Superior Court, but the defendants still refused to pay the judgment or the arbitration award. The plaintiff then sued in Connecticut to enforce the arbitral award and the judgment.
The Connecticut Superior Court relied heavily upon the newly enacted Uniform Foreign-Money judgment Recognition Act.(fn27) It held that the judgment of the Quebec Province Superior Court was the judgment of a foreign state under §52-611(l), and within the Act because it granted the recovery of a sum of money.(fn28) The court found that the plaintiff was entitled to recognition and enforcement of the foreign judgment, unless the defendants could show that recognition, should not be granted under §52-614,(fn29) and went on to analyze that section's requirements.
Section 52-614(a)(1) provides that a foreign judgment is not conclusive unless it is rendered under a system that provides procedures compatible with the requirements of due process of law. The court held that it was clear the arbitration committee of the Quebec Bar and the Quebec Superior Court met those requirements, even though their procedures may be different from Connecticut procedures.
More importantly, the defendants claimed that they did not receive proper notice of the proceedings. Their failure to receive notice would require that the court deny enforcement of the award under §52-614(b) (1). With an exhaustive factual analysis, the court determined the defendants' counsel knew of the date of the bearing even though the defendants themselves may not have known. The court held that parties are bound by their attorney's actions as long as those actions are within his general authority to represent the client.
The Quebec Bar's arbitration procedure required the defendants to deposit security to pay the amount of any arbitration award. The defendants never deposited the required security, but the plaintiff waived the security requirement unilaterally. The court sided with the plaintiff in determining that the plaintiff's waiver of the security did not amount to a denial of due process or fraud under §52-614.
The court determined that the plaintiff was entitled to recover Can. $18,544.03. Without mentioning the Uniform Foreign-Money Claims Act,(fn30) which became effective three months before this decision, on October 1, 1989, the court ordered a hearing on damages to determine the amount
of money owed in United States dollars and the amount of interest that should be awarded. Under the Uniform Foreign-Money Claims Act, judgment should be entered in the foreign currency, in this case Canadian dollars, and the conversion into United States dollars should be calculated as of the date of payment.(fn31)
V. IMPLEMENTING LEGISLATION FOR THE INTER-AMERICAN ARBITRATION CONVENTION
The United States became a party in 1990 to the 1975 Inter-American Convention on International Commercial Arbitration (the "Inter-American
Convention")(fn32) after the necessary implementing legislation was enacted by the 101st Congress.(33)
The Inter-American Convention is sponsored by the Organization of American States (the "OAS") and requires countries to enforce agreements to arbitrate and arbitration awards, as does the more widely adopted New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the "New York Convention").(fn34) Many Latin American countries have not become parties to the New York Convention because of their jurisprudential distrust of arbitration. The Inter-American Convention was drafted as a regional solution to concerns about the enforcement of agreements to arbitrate and arbitration awards.(fn35)
President Reagan transmitted the Inter-American Convention to the Senate in 1981. The Senate gave its advice and consent to ratification in 1986,(fn36) but required implementing legislation to be adopted as a pre-condition for depositing the instrument of ratification with the OAS. Although the implementing legislation was introduced in the Congress during the 99th and 100th sessions, and passed the Senate both times, the House of Representatives never acted on the bills. The implementing legislation was introduced again in the 101st Congress as H.R. 4314.(fn37)
The House Subcommittee on Immigration, Refugees and International Law of the 101st Congress, chaired by Connecticut Representative Bruce A. Morrison, held hearings on the necessary implementing legislation on May 1, 1990,(fn38) and the Subcommittee recommended its passage to the House judiciary Committee on the same day. H.R. 4314 was passed by the House on June 5,1990, and by the Senate on August 4, 1990. It was signed into law by President Bush on August 15, 1990,(fn39) and the United States deposited its instrument of ratification with the OAS on September 27, 1990, effective October 27, 1990.
The implementing legislation for the Inter-American Convention is virtually identical to that for the New York Convention;(fn40) most of the changes simply substitute the name of the Inter-American Convention for the New York Convention. Section 302, dealing with the Inter-American Convention, specifically incorporates existing Sections 202, 203, 204, 205 and 207, which deal with the New York Convention. This means that all the case law interpreting these sections in connection with the New York Convention applies to interpretation of the Inter-American Convention's implementing legislation.
One change appears in new Section 303(b), which provides that the court must require arbitration to be held in accordance with the agreement even if the parties fail to specify the place of arbitration.(fn41) Twenty years of experience since the enabling legislation for the New York Convention was enacted show this provision to be necessary because the parties sometimes fail to specify where the arbitration is to be held, a relatively minor omission that should not be considered such a major defect as to render invalid the agreement to arbitrate.
New Section 303(b) also provides that the arbitrators may be appointed in accordance with Article 3 of the Inter-American Convention, if the agreement fails to specify how all the arbitrators will be appointed. While the parties usually provide a method for appointing arbitrators, the agreement to arbitrate should be enforceable even if they do not. In this case, the "fall back" rules of procedure are specified by the Inter-American Commercial Arbitration Commission ("Inter-American Commission"). New Section 306 makes it clear that the applicable rules are those promulgated by the Inter-American Commission on July 1, 1988,(fn42) which are virtually identical to the very highly regarded UNCITRAL arbitration rules.(fn43)
Unlike the implementing legislation for the New York Convention, new Section 304 requires reciprocity by limiting the application of the Inter-American Convention to cases where the arbitral award is made in a territory of a contracting state.
New Section 305 makes it clear that the regional solution, namely the Inter-American Convention, is to prevail over the New York Convention if a majority of the parties to the arbitration are citizens of a state or states that are parties to the Inter-American Convention and are member states of the OAS. The latter condition was imposed by the Senate in 1986, but for no obvious reason: all present and likely parties to the Inter-American Convention are also members of the OAS.
*. Of the Farmington Bar; former Chair, Section of International Law and World Peace, Connecticut Bar Association.
**. Vice President and Deputy General Counsel, Equator Holdings Limited, Hartford.
1. The decision is dated December 28, 1989, but the authors consider that close enough.
2. 1987 Conn. Acts 87-W, codified as CONN. GEN. STAT. §§45-194a - 45-194i. See Stadler & Bagger, Connecticut Probate Law 1987, 62 CONN. B. J. 185, 189-90 (1988).
3. 12 I.L.M. 1302 (Nov. 1973), opened for signature Oct. 26,1973.
4. But not the United States, which signed it in 1973 but has never ratified it. However, the President is pressing for the Senate's advice and consent during 1991.
5. 1988 Conn. Acts 88-39, codified as CONN .GEN. STAT. §§52-600 - 52-618. See generally Ebke & Parker, Foreign Country Money-judgments and Arbitral Awards and the Restatement (Third) of the Foreign Relations Law of the United States: A Conventional Approach, 24 Int'l Law. 21 (1990)
6. 1989 Conn. Acts 89-134, codified as CONN. GEN. STAT. §§50a-50 - 50a-65.
7. See note 29 infra.
8. United Nations Commission on International Trade Law.
9. 1989 Conn. Acts 89-179, codified as CONN. GEN. STAT. §§50a-100 - 50a-136. See Hoellering, The UNCITRAL Model Law on International Commercial Arbitration, 20 INT'L Law. 327 (1986); see generally Lecuyer-Thieffry & Thieffry, Negotiating Settlement of Disputes Provisions in International Business Contracts: Recent Developments in Arbitration and Other Processes, 45 Bus. Law. 577 (1990).
10. "ECOSOC" stands for "Economic and Social Council." See Chapter X of the Charter of the United Nations.
11. 268 U.N.T.S. 92 (1956). This convention is patterned after the Uniform Reciprocal Enforcement of Support Act, CONN. GEN. STAT. §§46b-180 - 46b-211.
12. 11 I.L.M. 1286 (1972).
13. Hawaii House Conc. Res. No. 172.
14. Oregon Bar Res. No. 14 (19W).
15. "Connecticut Aims for International Enforcement, printed on page 33 with Arant, Cracking Down on Delinquent Dads, STATE LEGISLATURES, Sept 1990, at 32.
16. H.R. RES. 467, 101st Cong., 2d Sess.
17. U. S. CONST. art.I, § 10, cl. 3: "No State shall without the Consent of Congress enter into any Agreement or Compact ... with a foreign Power. . .
18. This Act results in new §§ 52-163a, 52,163 and 52-168 of the General Statutes; §§ 5132 and 52-162 are repealed.
19. §1 of the Act, codified as CONN. GEN. STAT. §52-163a.
20. E.g., the UNIFORM INTERSTATE AND INTERNATIONAL PROCEDURE Act (1962).
21. Former CONN. GEN. STAT. §52-163.
22. CONN. GEN. STAT. §52-163a(a) (1990).
23. CONN. GEN. STAT. §52-163a(b)(1990).
24. CONN. GEN. STAT: §52-163 (as amended).
25. CONN. GEN. STAT. §52-166 (as amended).
26. 5 C.S.C.R. 72 (1989).
27. Note 5 supra.
28. CONN. GEN. STAT. §52-611(2)(1990).
29. CONN. GEN. STAT. §52,614 provides:
(a) A foreign judgment is not conclusive if:
(1) The judgment was rendered under a stem which does not provide impartial tribunals or procedures compatible wig the requirements of due process of law;
(2) The foreign court did not have personal jurisdiction over the judgment debtor; or
(3) The foreign court did not have jurisdiction over the subject matter.
(b) A foreign judgment need not be recognized if:
(1) The judgment debtor in the proceedings in the foreign court did not receive of the proceedings in sufficient time to enable him to defend;
(2) The judgment was obtained by fraud;
(3) The cause of action on which the judgment is based is repugnant to the public policy of this state;
(4) The judgment conflicts with another final and conclusive judgment;
(5) The proceeding in the foreign court was contrary to an agreement between the parties under which the dispute in question was to be settled otherwise than by proceedings in that court; or
(6) In the case of jurisdiction based only on personal service, the foreign court was a seriously inconvenient forum for the trial of the action.
30. Note 6 supra.
31. Rather than the date of the loss, the date of the arbitration award, the date of confirmation by the Quebec court, the date of confirmation by the Connecticut court or the date of the hearing on damages.
32. 14 I.L.M. 336 (1975). A more detailed analysis of the convention and its implementing legislation appears in Lowry, The United States joins the
Inter-American Arbitration Convention, 7 J. INT'l ARB. 83 (1990).
33. 9 U.S.C. §§ 301-307 ( ).
34. 21 U.S.T. 2517, T.I.A.S. No. 6997, opened for signature June 10, 1958, entered into force June 7, 1959; effective for the United States December 29, 1970, subject to declarations, P.L. 91-368 84 Stat. 692,9 U.S.C. §§ 201-208. The New York Convention was the result of the United Nations Conference on International Commercial Arbitration, which was held in New York City in 1958. See generally Martinez, Recognition and Enforcement of International Arbitral Awards Under the United Nations Convention of 1958: The "Refusal Provisions, 24 INA LAW. 487 (1990).
35. The following countries are parties to the Inter-American Convention:
Country Signature Ratification
Bolivia 2 Aug. 1983
Brazil 30 Jan. 1975
Chile 30 Jan. 1975 17 May 1976*
Colombia 30 Jan. 1975 29 Dec. 1986*
Costa Rica 30 Jan. 1975 20 Jan. 1978*
Dominican Republic 18 Apr. 1977
Ecuador 30 Jan. 1975
El Salvador 30 Jan. 1975 11 Aug. 1980
Guatemala 30 Jan. 1975 20 Aug. 1986*
Honduras 30 Jan. 1975 22 Mar. 1979
Mexico 27 Oct. 1977 27 Mar. 1978*
Nicaragua 30 Jan. 1975
Panama 30 Jan. 1975 17 Dec. 1975*
Paraguay 26 Aug. 1975 15 Dec. 1976
Peru 21 Apr. 1988 22 May 1989*
United States 9 Jun. 1978 25 Apr. 1977*
Uruguay 30 Jan. 1975
Venezuela 30 Jan. 1975 16 May 1985
*also party to New York Convention
36. Senate Executive Report 99-24.
37. A Bill to Implement the Obligations of the United States under the Inter-American Convention on International Commercial Arbitration, introduced on March 20, 1990, by Representative Jack Brooks of Texas at the request of the Bush administration. An identical bill was introduced by Senator Claiborne Pell on November 20, 1989 as S. 1941.
38. Harold S. Burman of the State Department Legal Advisor's office, Garylee Cox of the American Arbitration Association and Houston Putnam Lowry of the Connecticut Bar Associations Section of International Law and World Peace testified in favor of the bill.
39. P.L. 101-369, codified at 9 U.S.C. §301-307.
40. 9 U.S.C. § 201-208 ( ).
41. The Inter-American Commission recommends the following clause for the arbitration of future disputes:
Any dispute, controversy or claim arising out of or relating to this contract, or the breach, termination or invalidity thereto, shall be settled by arbitration in accordance with the rules of procedure of the Inter-American Commercial Arbitration Commission in effect on the date of this agreement. [The arbitral tribunal shall decide as amiable compositeur or ex aequo et bono.]
An arbitration clause that stops here, however, may well lead to difficulties, some of which are mentioned in the text. The Inter-American Commission and most commentators) suggests that the parties consider adding additional clause as:
"The number of arbitrators shall be [1 or 3]"
"The place of arbitration shall be [location]"
"The language(s) to be used in the arbital proceedings shall be [one or more languages]."
It should be noted also that arbitral tribunals in the United States may lack the power to render awards as amiable compositeur or ex aequo et bono without specific enabling legislation (such as 1989 Conn. Acts 89-179, § 28(3), codified as CONN. GEN. STAT. §50a128(3) (1990)).
42. These rules are available from the Inter-American Arbitration Commission, OAS Secretariat Building, 1889 F Street, N.W., Suite 400-1), Washington, D.C. 20006.
43. The UNCITRAL rules are widely available; for example, the American Arbitration Association (which has an office at 2 Hartford Square West, Hartford, CT 06106) has published them in a free pamphlet.