By HOUSTON PUTNAM LOWRY (fn*) AND PETER W. SCHROTH (fn**)
During 1991, several important changes in Connecticut international law were
made by a single public act, entitled "An Act Concerning International
Obligations
and Procedures"; (fn1) the judges of the Superior Court adopted a rule
permitting foreign legal consultants to practice in Connecticut; (fn2) the
United States Senate
consented to ratification of the International Wills Convention; (fn3) and there
were two significant international law decisions in the courts, one in the
Superior Court
for the judicial District of Hartford/New Britain at Hartford (fn4) and the
other in the federal District Court for the District of Connecticut. (fn5)
International law has a variety of sources. The most obvious is treaties, but
international law can be found also in custom, in the general principles of law
recognized by civilized nations and in the writings of scholars! International
courts, domestic courts and arbitral tribunals create or recognize international
law through
their decisions. Likewise, the Connecticut General Assembly or the United States
Congress may enact rules that codify existing international law or facilitate
international transactions. Regardless of how it is made, international law now
affects lawyers who practice in every area of traditional Connecticut law. (fn7)
I. LEGISLATION BY THE GENERAL ASSEMBLY: THE 1991 OMNIBUS ACT
The Act Concerning International Obligations and Procedures (the "1991 Omnibus
Act") (fn8) made important changes in several areas of Connecticut law.
A. Hague Convention on Service of Process Abroad
Section 1 of the 1991 Omnibus Act concerns the service of process abroad, a
problem encountered whenever a defendant is not subject to service within the
United States. The statute deals only with state court procedure, but the same
problem occurs in the federal courts: a proposed amendment to Rule 4 of the
Federal
Rules of Civil Procedure deals with the same point. (fn9)
The United States has been a party to the Hague Convention on the Service of
Process Abroad of Judicial and Extrajudicial Documents in Civil or Commercial
Matters (the "Service Convention") (fn10) since August 24, 1967. This is a
multilateral convention drafted by the Hague Conference on Private International
Law, to
which more than twenty-seven countries currently adhere. When the United States
became a party, it was not considered necessary to enact implementing
legislation. However, several Connecticut "long arm" statutes conflicted with
the Service Convention. (fn11)
One of the purposes of the Service Convention was to eliminate service of
process on a governmental official as adequate service of process outside the
country in
which that official is based. (fn12) However, exactly that procedure was
required by such Connecticut laws as General Statutes Section 33-411, governing
service
of process on foreign corporations. Under that section, if, according to the
records of the Secretary of the State, a foreign corporation has failed to
maintain an agent
for service of process in the state or if the agent cannot, with reasonable
diligence, be found at the address shown on the Secretary of the State's
records, then
service of process is to be made by delivery to the Secretary of the State and
by mailing a copy to the corporation at its last known address. (fn13)
Similarly, General Statutes Section 52-57(d) provides that, if none of the
partners of a partnership is a resident of Connecticut, service of process may
be made
by delivery to the Secretary of the State and mailing to the last known address
of every partner named in the writ who is not personally served. General
Statutes
Section 52-59b(c) goes further, providing a party within the "long arm"
jurisdiction of Connecticut (fn14) is deemed to have appointed the Secretary of
the State as
his agent f or service of process. General Statutes Section 52-62(a) provides
that any non-resident of Connecticut who "causes a motor vehicle to be used or
operated upon any public highway or elsewhere in this state" is deemed to have
appointed the Commissioner of Motor Vehicles as his agent for service of
process.
If a Connecticut corporation is involved in a quo warranto case and neither its
secretary, its treasurer nor its assistant treasurer is a Connecticut resident,
General
Statutes Section 52-65 provides that service may be made on the Connecticut
Attorney General. This conflict between Connecticut statutes and the Service
Convention was a fairly common problem prior to the effective date of the 1991
Omnibus Act.
Changing the reference from service on a particular local official to service by
mail would not have solved the problem 'but made it worse, because some
countries
object very strongly to service by international mail, and may even have
legislation making it a criminal act. (fn15)
Rather than amending each conflicting statute, Section I (a) of the 1991 Omnibus
Act simply provides:
Notwithstanding any provision of the general statutes relating to the service of
process, civil process shall not be served outside of the United States of
America in violation of any applicable treaty or convention, including without
limitation, the Hague Convention on Service of Process Abroad. (fn16)
This is technically sufficient and will be entirely sufficient for the
practitioner who is sophisticated enough to be aware of it. One of the authors
has spoken with
the Legislative Commissioners' office about mentioning this provision in the
notes to the conflicting sections cited above and we will follow up in
encouraging them to
do so. If such notes are not included or are included but are not read then the
new provision may turn out to be a trap. The ideal solution would be a second
bill,
amending each conflicting section of the General Statutes, but this task will
require careful attention to the distinction between substituted service on
out-of-state
United States persons, as to whom the existing provisions are acceptable, and
substituted service on non-United States persons, as to whom the amendments
would
insert rules consistent with the Service Convention.
Section 1(b) provides that if service cannot be made under the applicable
treaty or convention within sixty days, (fn17) then the superior court may order
an
alternative method for service of process. In selecting such alternatives, we
hope the court will be sensitive to the concerns of other countries; for
example, it would
not be appropriate for the court to allow this provision to become a loophole,
permitting unrestrained service of process through the mails, particularly in
countries
where it is a criminal offense to do so.
B. Hague Convention on Taking Evidence Abroad
Foreign countries are often very concerned about American pretrial discovery.
The concept of a "fishing expedition" is not only foreign, but frightening. In
response, some countries have enacted blocking laws, making it a crime to
conduct or to cooperate with foreign discovery that is not conducted through
local
officials. (fn18) Litigation American style is not only expensive, but also time
consuming. In response to these concerns, the Hague Conference on Private
International Law drafted a multilateral Convention on the Taking of Evidence
Abroad in Civil or Commercial Matters ("Evidence Convention"). (fn19) The United
States became a party to the Evidence Convention on August 8, 1972, and more
than twenty countries are now parties.
In Societe Nationale Industrielle Aerospatiale v. United States District Court,
(fn20) the United States Supreme Court held that a litigant did not need to
resort
to the Evidence Convention before using the standard discovery techniques of the
Federal Rules of Civil Procedure. This decision was almost unanimously
criticized, particularly by governments that are parties to the Evidence
Convention. (fn21) Section 2 of the 1991 Omnibus Act responds to this criticism,
as does a
similar proposed amendment to the Federal Rules of Civil Procedure. (fn22)
Section 2 provides that if an applicable treaty or convention, including, but
not limited to, (fn23) the Evidence Convention, provides for discovery outside
the
United States, the discovery methods agreed to in that treaty are to be
employed. If an applicable treaty "renders discovery inadequate or inequitable
but does not
prohibit additional discovery," then the court may order additional discovery.
This might consist of letters of request (sometimes called "letters
interrogatory") or other
judicial requests for assistance. Appropriate procedural amendments to the
Practice Book would be desirable and we hope the courts will be sensitive to the
needs
and concerns of other countries when allowing additional discovery, not
permitting this exception to be used to vitiate the general rule.
C. Unauthorized Practice of Law
Section 3 of the 1991 Omnibus Act modifies the unauthorized practice of law
statute (fn24) in Connecticut to make it clear that agents in international
commercial arbitrations (fn25) are not practicing law, that is, that a party's
agent does not have to be a member of the bar of the place of arbitration. For
example, if
a Hong Kong corporation and a German corporation agree to arbitrate in
Connecticut as the General Assembly has indicated it wants them to do (fn26)
they may
use their customary legal representatives even though those representatives are
not members of the Connecticut bar. (fn27)
D. Foreign Legal Consultants (fn28)
Section 4 of the 1991 Omnibus Act authorizes the Superior Court to regulate
foreign legal consultants. (fn29) The judges of the Superior Court (fn30)
adopted
PRACTICE BOOK Sections 24A et seq. (fn31) on June 21, 1991. (fn32)
By enacting these rules, Connecticut joined at least ten other states that allow
foreign lawyers to practice within their boundaries. (fn33) These rule changes
were
supported by the United States Department of Commerce as part of its efforts to
remove restrictions on United States lawyers practicing American law overseas.
The American Bar Association, by supporting almost identical District of
Columbia rules, supported the Connecticut rules by implication. (fn34) The
Connecticut Bar
Association's Section of International Law and World Peace also supported these
rules.
There is no reason to expect a great demand for foreign lawyers to practice in
Connecticut. Even though a large number of major United States corporations are
based in Connecticut, many foreign law firms prefer to be in New York. The main
objective of the proposal was to put Connecticut lawyers on an equal footing
with
New York lawyers with regard to practicing outside the United States.
Many foreign countries require reciprocity before they will allow an American
lawyer to practice in their country. For example, since 1989, Germany has
permitted foreign legal
consultants to practice their home country's law in Germany, (fn35) provided
German lawyers are allowed the corresponding privilege in the foreign legal
consultants'
home jurisdiction. (fn36) Japan has had a roughly similar rule since 1986.
(fn37) Under the new law adopted in France at the end of 1990, (fn38) no more
foreign
lawyers will be allowed to become conseils juridiques; admission of persons who
are not European Community nationals to practice at all in France, even in a
practice limited to advising on foreign law, will require passing an examination
in French law and demonstrating that the foreigner's home jurisdiction permits
French
lawyers the same privileges. (fn39)
In our opinion, Connecticut law has met the new French standard since the United
States Supreme Court's decision in Application of Griffiths. (fn40) It did not
meet the new German and Japanese standards, however, until the 1991 Omnibus Act
took effect on October 1, 1991. In contrast, New York (to pick a random
example) has met all three tests since 1974. (fn41) These three countries, like
many (but not all) other countries with such requirements, recognize the federal
nature
of the United States and therefore discriminate between American lawyers from
states with and without rules authorizing foreign legal consultants.
The new sections of the Practice Book set out the requirements for admission as
a "foreign legal consultant." These rules generally follow Connecticut's rules
concerning admission
to the bar. (fn42) Section 24C gives the bar examining committee several
important functions. First, the applicant must file an application for a license
as a foreign
legal consultant with the administrative director of the bar examining
committee. The court (not the committee) may vary the requirements of an
application upon a
showing that it is impossible, or at least very difficult, to obtain a
certificate of good standing or two letters of recommendation in the foreign
country. The bar
examining committee investigates the qualifications, moral character and general
fitness of the applicant. This can include a character report from the National
Conference of Bar Examiners. Upon the recommendation of the Bar Examining
Committee, the court may license the foreign legal consultant. No examination is
required.
The Superior Court Rules Committee considerably modified the International Law
Section's initial proposal defining the scope of a foreign legal consultant's
practice. The original proposal used the prohibited list of activities from the
New York and District of Columbia rules. (fn43) The Connecticut Bar
Association's
Committee on the Unauthorized Practice of Law was concerned about using only the
prohibited list of activities and requested the additional restriction that the
foreign legal consultant may advise only on the laws of his home country, which
now appears in the first sentence of Section 24D. (fn44)
The Superior Court Rules Committee dropped the list of prohibited activities but
kept the requirement a foreign legal consultant can consult only on the laws of
his own country. The rules now simply require that the foreign legal consultant
not hold himself out as a member of the Connecticut bar and use
only the title "foreign legal consultant."
A foreign legal consultant must execute and file with the clerk of the court a
written commitment to observe the Connecticut Rules of Professional Conduct,
undertake to provide evidence of professional liability insurance in such amount
as the court may prescribe, and sign a consent to service of process. The
foreign
legal consultant is obligated also to comply with "the rules of practice
regulating the conduct of attorneys in the state." This probably will be
construed as requiring the
foreign legal consultant to comply with Practice Book Section 27A et seq., which
regulates the use of client's funds. Each client's funds account must be
registered
with the statewide grievance committee. Failure to register the account
constitutes professional misconduct. These accounts may be maintained only at
financial
institutions that agree to notify the statewide grievance committee if an
instrument is presented against the trust account when it has insufficient
funds. (fn45) This
procedure is considered a very important weapon in detecting the embezzlement of
client's funds, a problem of significant notoriety in recent years.
Foreign legal consultants are subject to the same disciplinary procedures as
Connecticut attorneys. (fn46) The procedures for investigating unethical conduct
are
the same. (fn47) Insurance requirements are included (fn48) in recognition of
the risk of flight if a foreign legal consultant commits professional
misconduct. The rules
also provide the form of the oath of the foreign legal consultant. (fn49)
E. Professional Corporations
The Connecticut Professional Corporation statute (fn50) previously limited
ownership to Connecticut qualified professionals. (fn51) This seemed to be
unduly
restrictive, because Connecticut allowed partnerships between Connecticut
professionals and
non-Connecticut professionals. A partnership practicing law in Connecticut may
have non-Connecticut attorneys as partners. This made the professional
corporation
a less desirable vehicle for multi-state businesses.
Recognizing there was no persuasive reason for this distinction, the General
Assembly, in Sections 5-8 of the 1991 Omnibus Act, (fn52) allowed professionals
qualified in other jurisdictions (including foreign legal consultants) to become
shareholders in Connecticut professional corporations. However, Section 6(b)
(fn53)
provides that a foreign qualified professional cannot control the way a
Connecticut licensed professional delivers professional services within the
State of
Connecticut. Section 8 requires a foreign professional corporation transacting
business in this state to obtain a certificate of authority from the Secretary
of the State.
(fn54) These sections were not intended to modify any professional or "ethical"
obligations restricting or limiting a multi-jurisdiction professional practice.
(fn55)
F. UNCITRAL Model Law on International Commercial Arbitration
Section 9 of the 1991 Omnibus Act amends the UNCITRAL Model Law on International
Commercial Arbitration (fn56) to eliminate the requirement that the
arbitration agreement have been made on or after October 1, 1989. Thus the law
now applies to all international arbitrations in Connecticut, regardless of when
the
agreement to arbitrate was executed.
G. Conflict of Jurisdictions Model Act
Sections 11 to 13, which are the balance of the 1991 Omnibus Act, incorporate
the provisions of the Conflict of jurisdictions Model Law. (fn57) Originally
drafted by a subcommittee of the American Bar Association Section of
International Law and Practice, the model law specifies the prerequisites to
enforcement in
Connecticut of judgments rendered by other jurisdictions. These conditions are
designed to reduce the awkwardness of "parallel proceedings," where courts
having
concurrent jurisdiction over the same dispute "race" to judgment.
It also reduces the chance of competing injunctions as courts jockey for
position. (fn58)
The model law requires the adjudicating forum to determine that it is the most
convenient forum by applying specified guidelines. The selection of an
adjudicating
forum will be accorded presumptive validity in Connecticut only if the written
decision includes evaluation of the substance of the factors set forth in these
guidelines.
This makes it more difficult for the party who can find a forum that has
jurisdiction over the controversy and can adjudicate the controversy more
quickly than other
fora to obtain a tactical advantage.
II. UNITED STATES SENATE'S ADVICE AND CONSENT TO THE 1973 UNIDROIT CONVENTION ON
THE FORM OF AN INTERNATIONAL
WILL
As we noted last year, (fn59) the United States signed the Convention on the
Form of an International Will (fn60) (the "Wills Convention") in 1973. Although
Connecticut and a few other states adopted the Uniform International Wills Act,
(fn61) and the Convention was transmitted by the President to the Senate in
1986, it
was not until August 2, 1991, that the Senate consented to its ratification.
At present, Belgium, Canada, Cyprus, Ecuador, Italy, Libya, Niger, Portugal and
Yugoslavia are parties to the Wills Convention. It has been signed but not yet
ratified by China, Czechoslovakia, France, Iran, Laos, Sierra Leone, the United
Kingdom, the United States and the U.S.S.R.
The Convention was drafted under the auspices of the International Institute for
the Unification of Private Law (UNIDROIT) in cooperation with the Secretary
of State's Advisory Committee on
Private International Law and the National Conference of Commissioners on
Uniform State Laws. The Convention was promulgated at the conclusion of a
diplomatic conference on wills hosted by the United States from October 10 to
26, 1973. Ambassador Richard D. Kearney, Chairman of the Secretary of State's
Advisory Committee on Private International Law, was elected Chairman of the
UNIDROIT Conference on Wills.
Wills are ambulatory instruments under the common law. As to personal property,
the formal requirements of a will are governed by the law of the testator's
domicile at the time of his death. The common law rule is that a will must meet
the formal requirements of the law of the place where real property is situated,
regardless of domicile. Needless to say, it is often difficult to predict
accurately where a testator will die or what real property he will own on his
death. This problem
is somewhat alleviated by the existence of broad choice of law statutes in many
states within the United States.
In contrast, civil law countries tend to require a will to meet the formal
requirements of the law of the testator's nationality. While nationality is
usually more
readily ascertainable than a person's domicile, a person may be a national of
more than one country or change nationality after executing a will. These
systems
sometimes lead to the application of contradictory rules of law. (fn62)
It was hoped the Convention would provide some measure of harmony by blending
common law and civil law elements to prove the formal validity of a will. The
Convention was not intended to affect local laws concerning capacity, protection
of spouses and children, (fn63) interpretation, revocation of wills and
administration
of decedents' estates.
Convention Article I requires each contracting country to introduce into its law
the Uniform Law on the Form of an International Will attached as an annex to the
Convention. (fn64) This annex was slightly modified by the National Conference
of Commissioners on Uniform State Laws and made part 10 to Article 2 of the
Uniform Probate Code. California, Connecticut, Illinois and Oregon have enacted
the Uniform
International Wills Act separately from the Uniform Probate Code. Colorado,
Minnesota and North Dakota have enacted the Uniform International Wills Act as
part of the Uniform Probate Code.
Under Convention Article 11, each contracting party must designate the
"authorized persons" to act in connection with International Wills. The
authorized person
is usually attorneys and diplomatic or consular agents abroad. The anticipated
federal implementing legislation will designate diplomatic agents and consular
agents
abroad as authorized persons. Each state within the United States must determine
who is an authorized person to act within its own boundaries. The capacity of
the
authorized person to act must be recognized by other contracting states in
accordance with Convention Article III. The certificate executed by the
authorized person
makes the will self-proving in accordance with Convention Article IV.
Different states and countries have different qualifications for witnesses to
wills. Under Convention Article V, the local law determines the qualifications
for a
person to act as a witness, except that a witness may not be disqualified solely
because the witness is an alien. Other local requirements, such as a minimum or
maximum age, are acceptable.
The Convention requires many of the traditional elements to prove a valid will.
The will must be in writing, (fn65) signed by the testator (fn66) before the
witnesses and the authorized person, and the witnesses and authorized person
must sign the will in the presence of the testator. (fn67) The signature must be
placed
at the end of the will. (fn68) If the will consists of several sheets, each
sheet must be signed by the testator. (fn69) The Convention prohibits requiring
legalization,
which should streamline the process of probating foreign wills.
The scope of the treaty power of the United States has never been fully
delimited. (fn70) The constitutional distinction between a treaty, alliance or
confederation" (fn71) and an "agreement or compact" (fn72) has never been clear,
except that no agreement may
impinge upon the just sovereignty of the United States. (fn73)
The regulation of wills traditionally has been within the competence of the
states of the United States rather than of the federal government. The
anticipated
federal implementing legislation will designate who constitutes an "authorized
person" outside the United States. It is up to each individual state, territory
and
possession within the United States to determine who will be allowed to act as
an "authorized person" within its borders. This division is necessary to achieve
a
seamless whole fulfilling-the objectives of the Convention, because the concept
of private international law apparently was not envisioned by the drafters of
the
United States Constitution and included within the treaty clause.
III. CASES
There were two cases of interest involving international law in Connecticut this
year, one in the United States District Court for the District of Connecticut
and
one in a Connecticut Superior Court. (fn74)
A. Renovales v. Roosa
The Superior Court case was Renovales v. Roosa, (fn75) in which two minor
children had been removed by their mother from their
home in Spain and were being retained in the United States. (fn76)
This type of problem is very common in multi-jurisdictional child custody and
divorce cases. Canada proposed the Hague Conference on Private International
Law begin work on a convention to deal with the alarming increase in
international child abductions. This occurs when one of the children's parents
takes the child in
violation of a custody award. The Hague Convention on the Civil Aspects of
International Child Abduction ("Abduction Convention") came into force on July
1,
1988, (fn77) for the United States and applies to all abductions since that time
between the countries that were parties on that date. As to countries that later
became
parties,
the Abduction Convention applies only to child abductions that occur after the
relevant effective dates. The Abduction Convention is implemented by the
International Child Abduction Remedies Act. (fn78)
The Abduction Convention operates on a very simple and basic principle: the
child must be returned. The underlying custody award is not relitigated in a
foreign
court, but only, if at all, in the country where it was issued. This concept is
working well in practice.
The return process is initiated by filing an application with the necessary
elements described in Article S. This application is filed with the Central
Authority of the
child's habitual residence or is forwarded to the Central Authority of any other
contracting state. If any Central Authority receives an application and has
reason to
believe the child is in another contracting state, it must immediately transmit
the application to the Central Authority of that contracting state and inform
the applicant.
The Central Authority where the child is located must take all appropriate
measures to obtain the voluntary return of the child. If the child is not
returned voluntarily,
the judicial or administrative authorities of the contracting state must act
expeditiously to return the child.
The child does not have to be returned if there is a "grave risk" that return
would expose the child to physical or psychological harm or if the person having
custody was not actually exercising his or her custody rights. (fn79) These
provisions have been very strictly construed, so that the purposes of the
Abduction
Convention could be accomplished.
In Renovales, the Court ordered that the children be returned to their father in
Spain and awarded the applicant $1,000 in counsel fees. In accordance with the
Abduction Convention, the Central Authorities were required to bear their own
expenses.
B. Zuckerbraun v. General Dynamics Corp.
Zuckerbraun v. General Dynamics Corp. (fn80) was decided by Judge Burns in the
United States District Court for the District of Connecticut. This case arose
out of the U.S.S. Stark incident, in which thirty-seven United States Navy
sailors, including the plaintiff's decedent, were killed by an Iraqi missile.
(fn81)
The defendants were the designers, manufacturers, testers and marketers of the
Phalanx Anti-Missile System, its component parts and the Stark's remaining
weapon
systems. The plaintiff claimed these weapon systems were inadequate, giving rise
to causes of action based in negligence, breach of the implied warranty of
merchantability, breach of the implied warranty of fitness for a particular
purpose and product liability arising from the defective design, manufacture or
testing of the
weapons. In light of the strong public policies involved, the court allowed the
United States to intervene. The Government, joined (fn82) by the private
defendants,
moved to dismiss on the basis of the Government's state secrets privilege and on
the ground that the case presented nonjusticiable political questions.
"The state secrets privilege is an evidentiary one which may only be asserted by
the Government .... The purpose of the privilege is to 'protect[] information
not
officially disclosed to the public concerning the national defense or
international relations of the United States.' " (fn83) "There must be a formal
claim of privilege,
lodged by the head of the department which has control of the matter, after
personal consideration by that officer." (fn84) The court evaluates the claim,
"according
the utmost deference to the executive official, (fn85) yet not abdicating
judicial control of the evidence of the case to executive officers." (fn86) The
privilege, if it
applies, is absolute.
In this case, the Secretary of the Navy submitted an affidavit meeting the
requirements of the privilege. According to the Secretary, in order to prove a
prima
facie case, the plaintiff would need access to the rules of engagement
authorized for, and military operation orders applicable to, the Stark at the
time of the incident
as well as general technical information regarding the design, performance and
functional characteristics of combatant ships and the weapons and defense
systems
installed on them. The Secretary stated that he had personally reviewed
the classification of this information and determined that its disclosure would
cause damage to the national security of the United States. The Court agreed,
finding
that
[t]he invocation of the state secrets privilege here encompasses so much of the information that the plaintiff would need to establish a prima facie case that the plaintiff's suggestions to redact privileged information, to later separate nonsensitive information from sensitive information, to engage in an item by item determination of privilege, to have a bench trial, or to assign a special master, are unworkable. (fn87)
The Court dismissed the case because the plaintiff had "failed to demonstrate
how he would be able to present a prima facie case without resort to classified
state secrets." (fn88)
The Court went on to consider a wide range of assertions, by the defendants and
the Government, that the case involved nonjusticiable political questions. The
Court rejected several of these assertions but accepted, as additional grounds
for dismissal, the arguments that there was a textually (fn89) demonstrable
commitment of control of foreign affairs and the military to the executive
branch and that there was a lack of judicially discoverable and manageable
standards for
evaluating military decisions. The Court noted, however, that the mere
assertion, even by the Government, that a dispute arises out of a military
conflict does not
automatically make it a nonjusticiable political question. (fn90) Thus, it is
much harder to get a case dismissed on the ground that political questions are
involved than
on the ground that state secrets are involved.
IV. CONCLUSION
1991 was an important year for international law. Almost all aspects of the
practice of law will be affected by what occurred. Litigators have to change the
way
they practice when they deal with foreign defendants. The family law
practitioner has to consider the return of children required by the Hague
Convention on the Civil
Aspects of Child Abduction and its implementing legislation. Foreign legal
consultants can open offices in Connecticut. Connecticut lawyers will find it
easier to
establish their practices in foreign countries. Lawyers from other states and
other countries may become members of Connecticut professional corporations and
foreign professional corporations may conduct business in Connecticut. Labor
lawyers know Title V11 does not apply overseas. Personal injury lawyers cannot
penetrate into military suppliers to prove a products liability case.
The developments during this year prove once again that international law
touches on all of our practices.
____________________
Footnotes:
*. 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. 91 Conn. Acts 324, effective October 1, 1991, discussed in Part I, infra.
2. PRACTICE BOOK §§24A et seq., discussed in Part 1. D, infra.
3. Convention Providing a Uniform Law on the Form of an International Will,
opened for signature Oct. 26, 1973, 12 I.L.M. 1302 (Nov. 1973), discussed in
Part
11, infra. The instrument of ratification will be deposited only after
implementing legislation has been enacted. As of late January 1992, the
implementing legislation
has not yet been introduced.
Also during 1991 the Foreign Relations Committee held hearings on the 1966
United Nations International Covenant on Civil and Political Rights, G.A. Res.
2200 (XXI) of December 16, 1966, 21 GAOR Supp. 16 (A/6316), 999 U.N.T.S. 171. As
we go to press, there are indications that the Senate may consent to
ratification in 1992.
4. Renovales v. Roosa, 6 CSCR 1015 (Super. Ct. Htfd.-N.B., at Htfd. 1991),
discussed in Part III.A, infra.
5. Zuckerbraun v. General Dynamics Corp., 755 F. Supp. 1134 (D.Conn. 1990),
discussed in Part III.B, infra. As to the date of this decision, which was Dec. 6,
1990, see Lowry & Schroth, Survey of 1990 Developments in International Law in
Connecticut, 65 CONN. B. J. 70 n. 1 (1991).
6. Art. 38, Statute of the International Court of justice.
7. Readers should be aware of several articles on related subjects published in
the Connecticut Lawyer: Rebell & Weecks, Foreign Trade Zones, 1 Conn. Law.,
No. 5, at 4 (Feb. 1991); Gans, The Immigration Act of 1990, 1 Conn. Law., No. 6,
at 2 (March 1991); Turrentine, Legal Remedies Against Unfair or Increased
Imports, I Conn. Law., No. 7, at 11 (April 1991).
8. See note 1 supra.
9. A proposed amendment to modify this and several other aspects of Rule 4 is
reproduced in West's FEDERAL CIVIL JUDICIAL PROCEDURE AND RULES
(1991 ed.). The Judicial Conference of the United States transmitted the
proposed amendment to the Supreme Court of the United States on November 19,
1990.
However, after objections from some federal agencies and foreign governments,
the Supreme Court did not approve but instead returned the proposal to the
Judicial
Conference for further study. See 134 F.R.D. 525, 526 (1991) And Sen. Exec.
Comm. 2440, 138 CONG. REC. S 150-& (daily ed. Jan. 22, 1992).
10. Nov. 15,1965, 20 U.S.T. 361, T.I.A.S. No. 6638, entered into force for the
United States February 10, 1969. The Service Convention is reprinted in a note
at
28 U.S.C.A., Fed. R. Civ. P. Rule 4 (1991) and in the "Law Digest" volume of the
MARTINDALE-HUBBELL LAW DIRECTORY.
11. The Service Convention preempts Connecticut law under the supremacy clause,
U.S. Const. art. V1, cl. 2. One of the holdings of Missouri v. Holland, 252 U.S.
416 (1920), is that the federal treaty power is not limited by the tenth
amendment's reservation of undelegated powers to the states.
12. See Volkswagenwerk v. Schlunk, 486 U.S. 694 (1988).
13. In this context "foreign" includes both corporations from other states of
the United States and corporations from other countries. However, the Service
Convention is not violated by CONN. GEN. STAT. §33-411 to the extent that it
deems service on the Secretary of the State to be service on a "foreign"
corporation incorporated in another state of the United States. The same
principle applies to the statutes cited in the next paragraph, which do not
violate the Service
Convention when the "foreign" party in question is merely a citizen of another
U.S. state.
14. As defined in CONN. GEN. STAT. §52-59b(a).
15. A brochure from Attorney's Process Service, International states:
There are a number of countries which consider service of process (even by mail) within their borders a judicial act under their sovereign jurisdiction. Such countries as the Federal Republic of Germany (W. Germany), Japan, Italy, Yugoslavia, and Switzerland prohibit and have penal sanctions against service of process which is not made in strict accordance with their civil codes (even on U . S. citizens abroad).
The civil code is not the statute that would cover this point and the author who
can read most of the relevant languages failed to turn up penal sanctions for
service of process by mail in the civil procedure and penal codes that could be
found locally. There is no doubt, however, that some countries object very
strongly to
service of foreign process by mail. For example, a 1980 State Department
document reproduced in 1 B.A. RISTAU, INTERNATIONAL JUDICIAL
ASSISTANCE (CIVIL AND COMMERCIAL) §3-1-9 at 67-68 (rev. ed. 1990) notes that
four parties to the Service Convention (Egypt, Federal Republic of
Germany, Norway, Turkey) had indicated in their instruments of ratification that
they objected to service by international mail and that three countries not then
parties
to the Service Convention (Czechoslovakia, Switzerland and the U.S.S.R.) had
submitted diplomatic notes of protest objecting to service of process by
international
mail on defendants residing in their territory. See also note 18 infra.
16. Although the form of this section's language is negative ("shall not be
served ... in violation . . ."), it means also that Connecticut process is to be
served in
accordance with the Service Convention.
17. Under Article 15 of the Service Convention, a party may declare that
judgment may be given after six months even if no certificate of service or
delivery has
been received from the foreign country's Central Authority. The United States
made such a declaration. If this point is brought to the court's attention, it
should be
possible to comply with both §1(b) of the 1991 Omnibus Act, which deals with
service of process, and Art. 15 of the Service Convention, which deals with
judgment.
Note too that this article of the Service Convention has an escape clause that
may be helpful in some circumstances: "Notwithstanding the provisions of the
preceding paragraphs the judge may order, in case of urgency, any provisional or
protective measures.
18. Penal restrictive statutes of several varieties from Australia, Belgium,
Canada, France, Germany, Netherlands, New Zealand, Philippines, Sweden,
Switzerland
and the United Kingdom are reprinted in 2 B.A. RISTAU, INTERNATIONAL JUDICIAL
ASSISTANCE (CIVIL AND COMMERCIAL) (rev. ed. 1990).
Some of these are quite broad, while others impose penal sanctions only if an
official has first ordered non-cooperation.
19. March 18, 1970, 23 U.S.T. 2555, T.I.A.S. No. 7444, 847 U.N.T.S. 231, entered
into force for the United States October 7th, 1972. The Evidence
Convention is reprinted as a note to 28 U.S.C.A. § 1781 (Supp. 1990) and in the
" Law Digest" volume of the MARTINDALE-HUBBELL LAW DIRECTORY.
20. 482 U.S. 522 (1987).
21. A copy of the Hague Conference's report on this topic was attached as
Exhibit 3 to the written testimony of Houston Putnam Lowry before the General
Assembly's Judicial Committee on HB-7364, which became the 1991 Omnibus Act.
22. Also returned to the Judicial Conference for further study. See note 9
supra.
23. 0ther "applicable treaties or conventions" would be the Inter-American
Convention on Taking Evidence Abroad, OEA/ser.A/22,14 I.L.M. 328 (1975) (if and
when it is ratified by the United States), or perhaps the relevant provision of
a friendship, commerce and navigation treaty.
24. CONN. GEN. STAT. §51-88.
25. As defined in CONN. GEN. STAT. §50a-101(3).
26. The legislature hoped to encourage such arbitrations by enacting P.A.
89-179, the UNCITRAL Model Law on International Commercial Arbitration, now
codified at CONN. GEN. STAT. §50a-100 through §50a-136. See Survey of 1990 Developments,
note 5 supra, at 71-72.
27. This position was endorsed by the American Bar Association Section of
International Law and Practice in August 1989. A.B.A. Report on International
Commercial Arbitration, 24 INT'L LAW. 599 (1990).
28. See Lowry, Connecticut Foreign Legal Consultants, 16 INT'L LEG. PRACTICE.
115 (Dec. 1991).
29. The original draft of H.B. 7364 defined a foreign legal consultant as any
person admitted to practice law in a foreign country who practices solely the
law of that
country in Connecticut. The definition was deleted from the final draft of the
bill.
30. At the public hearing before the Superior Court Rules Committee, it was
suggested that the Superior Court had no power to regulate foreign legal
consultants
because they didn't appear before the Superior Court. Interestingly, it had been
suggested to the General Assembly that explicitly giving this power to the
Superior
Court violated the separation of powers required by the Connecticut Constitution
because the Superior Court already had the power. If the Superior Court already
had the power, it certainly caused no problems for the General Assembly to
confirm it. If the Superior Court didn't have the power, then the General
Assembly made
a wise decision in giving that power to the court.
31. Conn. L.J., July 23 1991 at 8B.
32. Four days before the bill was signed by the Governor on June 25, 1991.
33. Alaska, California, District of Columbia, Hawaii, Michigan, New Jersey, New
York I Ohio, Oregon and Texas.
34. The American Bar Association specifically endorsed the District of Columbia
rules on foreign legal consultants. Because there were no material differences
between the Proposed Connecticut rules and the District of Columbia rules, the
Superior Court Rules Committee viewed the American Bar Association's comments
as an informal endorsement.
35. In addition to their home country's law, foreign legal consultants who are
citizens of European Community countries appear to be authorized to practice
foreign
and international law generally.
36. ". . . wenn die Gegenseitigkeit mit dem Herkunftsstaat verburgt ist." §206(2)Bundesrechtsanwaltsordnung, added by Gesetz of 13 December 1989,
BGBl. I
S.
2135.
37. Providing that "the Minister of Justice shall not be in a position to grant
approval [to a foreign legal consultant] unless substantially equivalent
treatment as
accorded by this Law is given in the foreign country [of the applicant] to a
person who is qualified to become [Japanese lawyer]." Art. 10(3), Law No. 66 of
1986,
as translated in R.H. WOHL, S.M. CHEMTOB & G.S. FUKISHIMA, PRACTICE BY FOREIGN
LAWYERS IN JAPAN 87, 95 (1989). This rule is
interpreted to require that the applicant be licensed in a jurisdiction that has
adopted a rule permitting Japanese lawyers to work as legal consultants. Id. at
19.
38. Loi no. 90-1259 of 31 December 19W, J.0. of 5 January 1991; Decret no.
91-1197 of 27 November 1991, J 0. of 28 November 1991.
39. "Etre ... ressort ssant d'un Etat on d'une unite territoriale ... qui
accorde aux Francais la faculte d'exercer sous les memes conditions I'activite
professionnelle que
l'interesse se propose lui-meme d'exercer en France...." Loi No. 90-1259, art 9
(cited in note 38 supra).
40. 413 U.S. 717 (1973) (limiting admission to the bar to United States citizens
violates equal protection clause of U. S. Const. amend. XIV).
41. As to foreign legal consultants, see N. Y. Rules of the Court of Appeals §
521.3 (McKinney 1991).
42. This may create difficulties in foreign lawyers qualifying, because some
large multi-national firms move their lawyers from country to country
frequently. A
candidate may never have practiced before his home bar for the necessary five
years. Under such conditions, the Superior Court has the power to modify the
requirements on an ad hoc basis.
43. Thus, as a result of the Rules Committee's modification, there is no
specific prohibition of a foreign legal consultant appearing. in court,
preparing deed affecting
real estate in the United States, preparing a will or trust instrument affecting
the disposition of property in the United States on death, preparing an
instrument relating
to the administration of a decedent's estate, preparing any instrument
concerning the marital relations, rights or duties of a resident of the United
State or preparing an
instrument concerning the custody or care of children of a United States
resident.
44. Although foreign lawyers may be concerned about the restriction that they
can practice only their home country's law, Connecticut lawyers have long considered
themselves unqualified to comment on the laws of any other jurisdiction.
Connecticut lawyers routinely refused to give opinions about New York,
Massachusetts or
Rhode Island laws, even though these jurisdictions border Connecticut.
45. It is immaterial whether or not the instrument was honored.
46. §24E (a) (1).
47. §24E (c).
48. §24E (a) (2)(ii).
49. §24F (b)
50 CONN. GEN. STAT. §33-182a et seq.
51. These sections apply not only to attorneys but also to dentists,
naturopaths, osteopaths, chiropractors, physicians and surgeons, doctors of
dentistry, physical
therapists, occupational therapists, podiatrist, optometrists, nurses,
veterinarians, pharmacists, architects, professional engineers, landscape
architects, certified public
accountants, land surveyors and psychologists.
52. §§5-7 amend CONN. GEN. STAT. §§33-182a, 33-182c and 33-182g. §8 is new.
53. CONN. GEN. STAT. §33-182c(b) (as amended).
54. Pursuant to CONN. GEN. STAT. §33-396.
55. See testimony of Lowry, note 21 supra, at 3.
56. See note 26 supra.
57. Wawro, Model Act Provides a Solution, Natl L. J., Jan. 29, 1990.
58. For example, a Connecticut court may enjoin a party from proceeding in a
foreign court. Very often, the foreign court respon3s by enjoining the other
party from
proceeding in Connecticut. If both injunctions were obeyed, the parties would be
without a forum.
59. See Survey of 1990 Developments, note 5 supra, at 70 n. 1.
60. Note 3 supra.
61. CONN. GEN. STAT. §§50a-1 et seq.
62. These problems are detailed in Kearney, The International Wills Convention,
18 INT'L LAW. 613 (1984).
63. Such as a widow's statutory right to elect against the will and the like.
64. The United States will not deposit its instrument of ratification until the
implementing legislation is passed. Because the Convention requires the
implementing
legislation to be enacted within six months of ratification and the President
cannot e certain whether Congress will act in time, the only practical way to
prevent the
United States from inadvertently breaching its treaty obligations is to delay
depositing the instrument of ratification until after the implementing
legislation is enacted.
65. Annex Art. III. See also Lowry, Does Computer Stored Data Constitute a
Writing for the Purposes of the Statute of Frauds and the Statute of Wills?, 9
Rut.
Computer & Tech. L. J. 93 (1982).
66. Annex Art. V.
67. Annex Art. V(3).
68. Annex Art. VI(1).
69. Annex Art. VI(2).
70. Missouri v. Holland, 252 U.S. 416 (1920).
71. U. S. Const. art. I, § 8, cl. 3; art. I, § 10, cl. 1; and art. 11,2, cl. 2.
72. U. S. Const. art. 1, § 10, cl. 3.
73. Virginia v. Tennessee, 148 U.S. 503 (1893).
74. In addition, readers should take note of a decision of the United States
Supreme Court, Equal Employment Opportunities Comm. v. Arabian American Oil Co.,
111 S. Ct. 1227 (1991), in which the court held that Title VII of the Civil
Rights Act of 1964, 42 U.S. C. §§ 2000a-2000h-6, does not apply to the
employment
practices of united States employers who employ United States citizens abroad.
The United States Court of Appeals for the Second Circuit decided at least seven
international cases in 1991, none of which originated in Connecticut. They are:
Shapiro V. Republic of Bolivia, 930 F.2d 1013 (2d Cir. 1991) (application of
Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §§ 1602 et seq.); In re
Request for Judicial Assistance (Letter Interrogatory) for the Federal Republic
of Brazil, 936 F.2.%1702 (2d Cir. 1991) (United States courts may order
production
of evidence pursuant to a foreign government's letter Interrogatory under 28
U.S.C. 5 1782 only if a legal action is proceeding or is very likely to
commence shortly
after the request); Klinghoffer v. S.N.C. Achille Lauro ed AltriGestione
Motonave Achille Lauro in Amminstrazione Straordinaria, 937 F.2d 44, 1991 A.M.C.
2751
(2d Cir. 1991) (Palestine Liberation Organization is not a recognized state and
therefore does not enjoy sovereign immunity; Weltover, Inc. v. Republic of
Argentina,
941 F.2d 145 (2d Cir. 1991) (application of Foreign Sovereign Immunities Act); Antares Aircraft, L.P. v. Federal Republic of Nigeria, 948 F.2d 90 (2d Cir.
1991)
(application of Foreign Sovereign Immunities Act); Caribbean Trading and
Fidelity Corp. v. Nigerian Nat. Petroleum Corp., 948 F.2d 111 (2d Cir. 1991)
(application of Foreign Sovereign Immunities Act); and Rogers v. Consolidated
Rail Corp., 948 F.2d 858 (2d Cir. 1991) (Federal Employer's Liability Act, 45
U.S.C. §51, does not apply extraterritorially).
75. 6 CSCR 1015 (Super. Ct. Htfd.-N.B., at Htfd. 1991).
76. The court states that the children were "wrongfully" retained, but this must
not be mistaken for a determination of the merits of an underlying custody
dispute. The
retention was wrongful" in the sense that it was not based on a ruling by the
Spanish court, which had taken jurisdiction of the matter and issued orders
granting
temporary custody to the father.
77. The Abduction Convention is not yet in U.S.T. or T.I.A.S. However, it was
reprinted in 51 Fed. Reg., No. 58 (March 26, 1986) and appears in the "Law
Digest" volume of the MARTINDALE-HUBBELL LAW DIRECTORY.
The following states became parties to the Abduction Convention on the indicated
dates (effective date with the USA is shown second):
Argentina March 19, 1991 June 1, 1991
Australia October 29, 1986 July 1, 1988
Austria July 14, 1988 October 1, 1988
Belize June 22, 1989 September 1, 1989
Canada June 2, 1983 July 1, 1988
Denmark April 17, 1991 July 1, 1991
France September 16, 1982 July 1, 1988
Germany September 27, 1990 December 1, 1990
Hungary April 7, 1986 July 1, 1988
Ireland July 16, 1991 October 1, 1991
Israel September 4, 1991 December 1, 1991
Luxembourg October 8, 1986 July 1, 1988
Mexico June 20, 1991 October 1, 1991
The Netherlands June 12, 1990 September 1, 1990
New Zealand May 31, 1991 October 1, 1991
Norway January 1, 1989 April 1, 1989
Portugal September 29, 1983 July 1, 1988
Spain June 16, 1987 July 1, 1988
Sweden March 22,1989 June 1, 1989
Switzerland October 11, 1983 July 1, 1988
United Kingdom May 20,1986 July 1, 1988
United States April 29, 1988 Not applicable
Yugoslavia September 27, 1991 December 1, 1991
78. 42 U.S.C. §§ 11001 et seq. The Central Authority for the United States is
the Bureau of Consular Affairs, Child Custody Division, Office of Citizens
Consular
Services, Room 4817, 2201 C Street, N.W., Washington D.C. 20520, telephone (202)
647-3666.
79. Art. 13.
80. 755 F. Supp. 1134 (D.Conn. 1990).
81. In settlement of the claims against it, the Government of Iraq paid
$27,350,374 to the Government of the United States in March 1989. See Iraq-
United States:
Agreement on Compensation in U.S.S. Stark Incident, 28 I.L.M. 644 (May 1989).
The United States distributed the funds to the individual beneficiaries whose
claims it had espoused.
82. Inappropriately, as to the state secrets privilege, because only the
Government has the right to assert it.
83. Zuckerbraun, note 80 supra, at 1137. The first quoted sentence is based on
United States v. Reynolds, 345 U.S. 1 (1953), a decision relied on for several
subsequent points. The internal quotation is from 8 C. WRIGHT & A. MILLER,
FEDERAL PRACTICE AND PROCEDURE 2019 at 158 (1970).
84. Reynolds, note 83 supra, at 7-8, quoted in Zuckerbraun, note 80 supra, at
1137.
85. Zuckerbraun, note 80 supra, at 1137, citing National Lawyers Guild v.
Attorney General, 96 F.R.D. 390, 398 (S.D.N.Y. 1982).
86. Zuckerbraun, note 80 supra, at 1137, citing Reynolds, note &3 supra, at 9.
87. Zuckerbraun, note 80 supra, at 1140.
88. Id.
89. The text being U. S. Const. art. II, § 2.
90. Citing Baker v. Carr, 369 U.S. 186, 211 (1962), Owens v. Brown, 455 F.
Supp. 291 (D.D.C. 1978), and Japan Whaling Ass'n v. American Cetacean Society, 478
U.S. 221(1986).