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
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
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.
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.
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.
*. 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
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
to the Service Convention (Czechoslovakia, Switzerland and the U.S.S.R.) had
submitted diplomatic notes of protest objecting to service of process by
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.
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).