By HOUSTON PUTNAM LOWRY (fn*) AND PETER W. SCHROTH (fn**)
This year's developments reflect a continuing trend in
Connecticut: just as it is necessary to know federal law when advising clients,
it is becoming increasingly obvious that a practicing lawyer must know at least
the rudiments of international law in order to advise his Connecticut clients
properly. As Connecticut clients extend their operations outside the United
States and foreign investors extend their operations into Connecticut, they call
upon their Connecticut lawyers to give them competent advice.
Part I of this article describes recent changes in Connecticut's international
banking law and some international aspects of revisions in the state and federal
rules of civil procedure. Part 11 is a discussion of three decisions of the
Connecticut courts and the United States District Court for the District of
Connecticut. (fn1)
I. LEGISLATION.
A. International Banking. (fn2)
Connecticut law traditionally has been quite hostile to "foreign" banks,
although usually our legislators were thinking not so much of English or
Japanese banks as of banks based in New York (and, incidentally, other states).
Former §36-5a (fn3) (now §36a425) of the General Statutes forbade out- of-state
banks to transact any business in this state unless empowered to do so by some
Connecticut law (and there were only a few such statutory empowerments, notably
§36-5a(g), permitting loans secured by mortgages on residential real estate
located in Connecticut). (fn4) In 1983, banks from the other New England states
were allowed to come into the tent through acquisition of Connecticut banks
though not by establishing their own branches.' The restrictions on all other
banks were clarified in several ways and broadened to include savings and loan
associations in 1983 and 1984. (fn5) Two important aspects of this scheme were
permission for the establishment of up to two non- deposit-taking offices per
year in Connecticut by a "foreign" bank group (fn7) and a "grandfather" clause
allowing such groups to continue doing whatever they had been authorized to do
and were in fact doing, originally on March 1, 1983, and then on June 1, 1984.
(fn8) In 1990, the General Assembly finally granted access to the Connecticut
market to banks from any other state or foreign country extending reciprocal
privileges to Connecticut banks; this access was limited to acquisition of
Connecticut banks during the first two years, but establishment of Connecticut
banks was permitted beginning February 1, 1992. (fn9)
In 1994, the General Assembly adopted, effective January 1, 1995, a
comprehensive recodification of the banking laws. (fn10) The general rule of
former §36-5a (that foreign banking corporations are forbidden to transact any
business in this state unless empowered to do so by some Connecticut law)
continues to be found in new § 36a-425, but now the exception almost swallows
the rule:
provided .... no such foreign banking corporation shall be deemed to be doing or transacting business in this state for purposes of this section ... by reason of its making loans whether secured or unsecured. (fn11)
Deposit services, the other half of the traditional definition
of banking business (fn12) are not part of the exception, but out-of-state banks
routinely accept deposits by mail from Connecticut residents.
The wording of the definition of "foreign banking corporation (fn13) in former
§36-5a(a) (now §36a-425(a)) was simplified in a potentially confusing way:
For purposes of this section, "foreign banking corporation" means a banking corporation which is organized under the laws of or has its principal office in any state other than Connecticut or any Foreign country.
Knowing that other states and foreign countries were treated the
same in the previous version of this sentence, we can be confident that it means
"under the laws of ... any state ... or any foreign country" rather than "other
than Connecticut or any foreign country," which would have the surprising effect
of exempting banks based in foreign countries from many of the restrictions on
out-of-state banks.
New §36a-425(b) eliminates the requirement of former §36-5a(b) that a foreign
banking corporation obtain permission from the Banking Commissioner to establish
an office in Connecticut that will not engage in a banking business but retains
the prohibition if the office will be used to enable the corporation to engage
in a banking business in the state. "Banking business," for this purpose, means
receiving deposits, paying checks, ness, lending money and closely related
activities. Whereas former §36-5a(d) permitted a foreign bank group to
establish, subject to the approval of the banking commissioner, only two new
offices per calendar year "for the purpose of engaging in banking business other
than to provide deposit services," new §36a-425(d) eliminates the numerical
limit.
In its October 1994 Special Session, the General Assembly responded to Swiss
Bank Corporation's interest in moving its North American headquarters (and a
reported 2,000 to 3,000 jobs) from New York City to Stamford with $145 million
in potential tax credits and further changes to the banking laws. (fn13) The new
provisions are not limited to Swiss Bank Corporation, so a "foreign bank"
willing to make Connecticut its home state for purposes of the International
Banking Act of 1978 (fn14) would now be allowed, with the Banking Commissioner's
approval, to establish branches or agencies to conduct a banking business in the
state. Note that a "foreign bank" for this purpose is a bank based outside the
United States and its territories, (fn15) so non-United States banks are now
allowed to do more in Connecticut than banks from other states. Furthermore, if
a foreign bank not only elects Connecticut as its home state but also employs
2,000 people here in a new building, (fn16) it will enjoy potentially very
substantial tax benefits not available to banks from other states. For
comparison, Swiss Bank Corporation might have been eligible for up to $50
million in tax credits on the basis of a class 2 eligibility certificate under §
12-217in of the General Statutes and its projected initial 2,000 employees in
the state, but under the new law, its tax credits may amount to $120 million for
the same 2,000 employees (albeit in a larger building than §12-217m requires).
B. Superior Court Rules.
Effective October 1, 1994, the Superior Court Rules Committee adopted two new
rules relating to international law issues. Practice Book §202A deals with
service of process outside the United States and §236B deals with discovery
outside the United States. This continues a story on which we reported three
years ago, implementing a portion of P.A. 91-324, (fn17) which is now codified
in § § 52-59d and 52-197b of the General Statutes.
1. 202A. Orders of Notice Directed Outside of the United States of America.
Practice Book §202A deals with orders of notice (fn18) directed abroad. An order
of notice is a direction by the court, giving notice to the defendant so the
defendant can appear and defend the lawsuit. Historically, litigants have relied
upon the various Connecticut long arm statutes (fn19) without determining
whether or not such "order of notice" service violates the Hague Convention on
the Service Abroad of judicial and Extra-judicial Documents in Civil or
Commercial Matters (the "Hague Service Convention"). (fn20) Section 52-59d of
the General Statutes makes it clear Connecticut has legislatively adopted the
so-called "first use" rule, rejecting the "comity" approach of the United States
Supreme Court in Volkswagenwerk v. Schlunk. (fn21) Under the "first use" rule, a
litigant must first attempt to use the Hague Service Convention if it is
applicable. Only if service cannot be completed within sixty days" may the
litigant apply to the Superior Court for an order of notice. The Superior Court
will issue an order of notice after considering the guidelines specified in
Schlunk and the Restatement (Third) of Foreign Relations §442.
Section 202A codifies existing law by describing the factors the court must
consider when determining the manner in which notice must be given:
(1) "other methods of service specified or allowed in any applicable
international treaty or convention, including any reservations." If a bilateral
treaty, such as an investment treaty or a friendship, commerce and navigation
treaty, provides for a method that supplements a method specified by a
multilateral treaty, the bilateral mechanism is preferred, in accord with the
common law principle of interpretation that a specific provision overrides a
general provision.
(2) "whether or not all applicable international treaties and conventions
prohibit substituted service." The authors are not aware of any multilateral
convention that expressly prohibits substituted service. Perhaps there is a
bilateral treaty that does so.
(3) "what method of service provides the greatest likelihood the patty being
served will receive actual and timely notice of the suit so the party may appear
and defend." This is a fundamental tenet of due process under the United States
Constitution and the Connecticut Constitution. The method of service must be
calculated not only to produce actual receipt of the documents by the defendant,
but also to make him understand the import of these documents (i.e., he is being
sued). (fn23)
(4) "whether or not a particular method of service violates the law,
particularly the criminal law, of the foreign country involved." It is less than
clear to the authors that foreign countries actually make it a criminal offense
to serve process in ways not authorized by local law," but it is plain that some
countries consider it a highly offensive infringement of their sovereignty and a
violation of their laws relating to civil procedure. In the application of
§202A, lack of violation of the criminal law should not be treated as a
sufficient basis for use of a method of service to which the host country is
known to object.
(5) "whether or not an actual agent of the party being served can be served
within the United States." When an actual agent, as distinguished from an
imputed agent (such as the Secretary of the State), is present in the
jurisdiction, the foreign national is effectively present and service may be
made by the normal procedures of domestic law.
2. §236B. Discovery Sought by Judgment Creditor Discovery Outside the United
States of America
Judgment Creditor -Discovery Outside the United States of America.
Practice Book §236B governs taking discovery abroad. Connecticut litigators
sometimes take the Practice Book Rules for granted, without considering whether
or not their use violates the Hague Convention on the Taking of Evidence Abroad
in Civil or Commercial Matters (the "Hague Evidence Convention"). (fn25) New
§23613 implements §52-197b of the General Statutes, which had as one of its
purposes rejection of the "case by case" analysis of Aerospatiale. (fn26) If it
is impracticable or inequitable to take evidence under an applicable treaty or
convention, a litigant may apply for a special order from the court to conduct
discovery or to preserve testimony. (fn27) While depositions are the usual
method of conducting discovery, the court can authorize other methods if the
circumstances warrant.
Practice Book §236B sets forth the factors the court should consider in devising
its orders, four of which are essentially the same as those to be considered
under §202A:
(1) " other methods of discovery specified or allowed in any applicable
international treaty or convention, including any reservations." The Hague
Evidence Convention does not specify any alternative methods of taking evidence,
although it is clear that the parties may use letters rogatory. The major
problem with a letter rogatory is the delay in its use.
(2) "whether or not all applicable international treaties and conventions
prohibit one or more specified methods of discovery." The Hague Evidence
Convention does not explicitly prohibit any particular method of discovery.
(3) "whether or not the method of discovery violates the criminal law of the
foreign nation involved." Some countries make it a criminal offense to conduct
or to cooperate with foreign discovery that is not conducted through local
officials. (fn28) Some of these statutes are "automatic," while others require
an application before discovery is blocked. In the early 1980s, several
countries, including France and the United Kingdom, enacted "blocking" statutes,
which prohibit foreign nationals from cooperating with United States-style
discovery.
(4) "whether or not the foreign nation's procedure low the parties to directly
apply to the foreign nation's courts for judicial assistance in obtaining
discovery." If a substantially equivalent local procedure is available, comity
requires its use.
(5) "the importance of the requested documents or other information to the
litigation."
(6) "the degree of specificity of the request."
(7) "whether the information originated within the United States." If a party
sends documents overseas to avoid discovery, this suggests broader discovery
should be allowed.
(8) "the availability of alternate means of obtaining the information." Because
any discovery intrudes to some extent on a foreign country's sovereignty, if
there are two sources of information of the same quality and one is overseas,
the domestic one should be used first.
(9) "the extent to which non-compliance with the request would undermine
important interests of the United States." However, the United States as such
does not have an important interest in the typical case.
(10) "the extent compliance with the request would undermine important interests
of the foreign nation involved." For example, a foreign country's national
security information should not be subject to discovery. While a foreign nation
may have an interest in every case, it does not have an important interest in
every case.
(11) "whether the discovery sought, or the method sought to be employed, is
unreasonably intrusive or burdensome under the circumstances." The use of
discovery as a weapon should be discouraged by the court, and not only in
international cases: the sole legitimate purpose of discovery is to obtain
information.
(12) "whether the request can be modified to make it reasonable under the
circumstances."
(13) "whether the foreign patty is wholly or partially owned by a foreign nation
or the instrumentality of a foreign nation." Foreign states have a particular
interest in certain industries. The courts should be sensitive to this interest,
recognizing that these industries are instrumentalities of state policy. While
this may shield managerial information, it should not shield operational
information. The court should take care to ensure that the discovery rules are
not used to give a foreign instrumentality a significant competitive advantage
over its commercial counterparts.
(14) "the cost of compliance."
(15) "whether the foreign country requires that discovery be obtained through a
judicial officer." Some countries require discovery to be taken through a
judicial officer, who makes a summary of the testimony, not a verbatim
transcript. The person who makes the transcript needs no particular
qualification to make the transcript, as long as someone else administers the
oath. When the normal procedure uses a judicial officer, it is easy to
understand how a foreign country can see its sovereignty interests as being
affected.
C. Federal Rules.
Effective December 1, 1993, the Federal Rules of Civil Procedure were
substantially modified. Changes to Rules 11 and 26 relating to discovery
appropriately received the most attention, but practitioners should also note
the completely rewritten Rule 4(f), replacing former Rule 4(l), on service of
process abroad. (fn29)
New Rule 4(f) covers service of process on individuals, corporations and
associations (fn30) in foreign countries. (fn31) Its first subdivision
authorizes service abroad "by any internationally agreed means reasonably
calculated to give notice, such as those means authorized by the Hague
Convention on the Service Abroad of judicial and Extrajudicial Documents . . .
." Its second subdivision authorizes use of the foreign country's own methods of
service, letter rogatory or, "unless prohibited by the law of the foreign
country," personal delivery or any form of mail requiring a return receipt, but
the methods of the second subdivision are permitted only "if there is no
internationally agreed means of service or the applicable agreement allows other
means of service, provided that service is reasonably calculated to give notice
.... "Rule 4(f)s third subdivision allows service "by other means not prohibited
by international agreement as may be directed by the court."
It is important to note that resort may not be had to the second subdivision if
there is an internationally agreed means (for example, if the defendant's
country is a party to the Hague Service Convention), unless "the applicable
international agreement allows other means of service." If the other country has
formally stated its objection to another means of service, then that method is
prohibited by the Hague Service Convention, which is a self-executing treaty
binding on all state and federal courts. The cases in this area generally do not
question the principle just stated, but rather examine the boundaries of a
foreign country's objection to see whether it has or has not objected to the
particular means in question. (fn32) The conclusion that a foreign country has
not objected, or not objected with sufficient precision and vehemence, to a
particular means should be treated with caution, if only because the defendant's
country may very well punish an offensive method of service by withholding
recognition and enforcement of the ensuing judgment.
Of particular concern in this regard is Rule 4(f)(2)(C)(ii), which allows
service by mail requiring a signed receipt, "to be addressed and dispatched by
the clerk of the court to the party to be served . . . ." This is permitted only
"unless prohibited by the law of the foreign country," but it seems unlikely
that most clerks of court or plaintiffs' attorneys will be knowledgeable enough
about the laws of a foreign country to determine whether or not service by mail
violates its law. As a matter of convenience, some practitioners may seek to use
this provision instead of following the rules of the Hague Service Convention.
While the attorney for the plaintiff will not be directly violating foreign laws
against service by mail, because the clerk mails the summons, it is unseemly for
a government official to violate the law of a foreign nation.
Rule 4(f)(3) authorizes the court to direct service in a different manner,
unfortunately without any stated limits beyond [u]nless otherwise provided by
federal law . . . ." In the authors' opinion, this proviso necessarily
incorporates the Hague Service Convention, but that point could easily be
overlooked (or, conceivably, even rejected). We would modestly propose that the
standards set forth in Connecticut's Practice Book §202A reflect the law
generally, rather than standing as an example of merely positive legislation.
That is, aside from specific differences like the United States Supreme Court's
ruling in Schlunk, the analysis under Rule 4(f)(3) should be similar to that set
forth in Practice Book §202A.
Rule 26 was not modified with respect to foreign discovery, so Societe Nationale
Industrielle Aerospatiale v. United States District Court (fn33) continues to be
the law of the land. Here too, the authors respectfully submit a "first use"
rule concerning discovery should be adopted for the Federal Rules of Civil
Procedure, similar to Connecticut Practice Book §236B.
II. CASES. (fn34)
A. Tacul S.A. v. Connecticut National Bank (fn35)
Tacul S.A. v. Connecticut National Bank was decided on February 17, 1994, by
Judge Covello in the United States District Court. In 1977, Connecticut National
Bank ("CNB") lent $1,700,000 to Plaintiffs Tacul S. A. and Comai S.A. In 1981,
Plaintiffs paid 5,445,174 pesos to the Mexican government for taxes due on the
interest they paid to CNB. Plaintiffs claim CNB agreed to reimburse them for
this payment but CNB refused to do so.
Plaintiffs brought suit against CNB in Mexico on November 14, 1984. According to
the Mexican court, the time for C N B to respond to the complaint expired on
January 9, 1985, but CNB failed to appear until March 22, 1985. The court held
that CNB had defaulted and entered judgment for Plaintiffs for $225,000. The
Mexican Appellate Court affirmed the trial court's judgment in 1986.
Although it is not mentioned in Judge Covello's opinion, Plaintiffs tried to
enforce the Mexican judgment by way of letters rogatory in 1988. judge Dorsey
ruled then that letters rogatory cannot be used to enforce a foreign judgment.
(fn36) Plaintiffs filed this action in the Connecticut Superior Court two months
later and CNB removed it to the United States District Court. Judge Covello
originally denied CNB's motion for summary judgment in 1993, but reconsidered
his position and granted summary judgment in 1994.
Judge Covello held that the Mexican judgment was not entitled to enforcement
under the Uniform Foreign-Money judgments Recognition Act (fn37) because the
notice provided to CNB did not meet due process standards, with the result that
the Mexican court did not have personal jurisdiction over CNB. The original
papers served on CNB were in Spanish and did not provide the location of the
pending action or the precise nature of the pending lawsuit. In fact, the
original letter rogatory issued by the Mexican government was not even served on
CNB. The moral of the story is always to spend the extra money to translate
foreign-language documents into English before they are served on a defendant.
B. Showmart Management v. Satra Arts International (fn38)
Plaintiff Showmart Management Ltd. of Ontario filed a motion for summary
judgment in lieu of a complaint to enforce an Ontario judgment pursuant to the
Uniform Enforcement of Foreign judgments Act (the "Enforcement Act") . (fn39)
Although Judge Karazin does not object to this choice of statutes in his
opinion, we do object: the Enforcement Act applies only to enforcement of the
judgments of sister states, which are entitled to full faith and credit under
the Constitution (fn40) and should not have been cited here. The Uniform
Foreign-Money judgments Recognition Act (the "Recognition Act") (fn41) (which is
mentioned, but not visibly relied on either by the plaintiff or by the court, in
Showmart) applies to recognition of judgments from other countries, which do not
benefit from full faith and credit.
The rest of the decision depends on this first mistake, because the "motion for
summary judgment in lieu of complaint" is not mentioned in the Recognition Act.
Section 52-607 of the General Statutes, which is part of the Enforcement Act,
says:
The right of a judgment creditor to proceed by an action on the judgment or a motion for summary judgment in lieu of com plaint instead of proceeding under sections 52- 604 to 52-609, inclusive, remains unimpaired.
But this turned out to be a trap for the unwary: noting that "no
Connecticut court has ever recognized the right to proceed by way of summary
judgment in lieu of complaint '" (fn42) the court held that the motion mentioned
in §52-607 was not permissible in Connecticut and therefore denied it,
suggesting that the plaintiff "bring an independent action against the defendant
pursuant to the Practice Book Rules or proceed under General Statutes §52-605. "
(fn43) We suppose it is logical, though rather odd, to say that what never
existed is "unimpaired," though it requires somewhat more imagination to see how
it "remains." The court could have decided the present case by holding the
Enforcement Act simply did not apply, because this was a Canadian judgment,
although that would have left the trap waiting for a plaintiff with a judgment
from another state.
The motion for summary judgment in lieu of complaint is a device accepted in New
York practice. Apparently the General Assembly simply enacted the New York
version of the Enforcement Act without conforming it to Connecticut practice.
C. Buitekant v. Zotos International, Inc. (fn44)
Plaintiff Allan Buitekant instituted suit in the Superior Court for the judicial
District of Stamford/Norwalk at Stamford against Defendant Shiseido Company,
Ltd. ("Shiseido"), a Japanese corporation. The original writ was filed with the
court on December 23, 1993, with a return date of March 15, 1994. The return
date was specially authorized by court order on December 13, 1993. Pursuant to
the Hague Service Convention, (fn45) the sheriff "served" the writ of summons on
the Japanese Minister of Foreign Affairs on December 15, 1993, by certified
mail, return receipt requested. The sheriff filed a supplemental return December
28, 1993, to show a return receipt from the Japanese Minister of Foreign
Affairs. A return of service from the Japanese Minister of Foreign Affairs was
filed with the court on April 8, 1994. Shiseido prevailed on its motion to
dismiss and because April 8 was not at least six days prior to the March 15
return date.
"Service" on the Japanese Minister of Foreign Affairs was not constructive
service in this case, because no treaty, statute or contract made the Minister
Shiseido's agent for service of process. The "service" was actually a request
that the Minister serve process on Shiseido in Japan. The Minister did so, but
the return of service was not within the time limit specified in §52-46a of the
General Statutes.
New Practice Book §202A, (fn46) effective October 1, 1994, deals with precisely
this point, but the decision, dated October 12, 1994, does not mention it. While
this oversight is understandable, considering that counsel's brief was dated
July 13, 1994, Section 52-59d(b) of the General Statutes (fn47) has been in
effect since October 1, 1991.
Central authorities often take their time in serving process under the Hague
Service Convention; for example, it is not uncommon for the United States
Department of justice to take several months. (fn48) Because return dates cannot
be set more than two months in advance, (fn49) the result of the Buitekant
holding is to give this delay the effect of depriving Connecticut residents of a
domestic forum. This is not a wise policy choice and is not the intended effect
of §52-59d(b). Upon application of a party, the court should simply stay the
action for a reasonable period of time to make sure service is properly
perfected under the Hague Service Convention. Regrettably, the court failed to
discuss, and probably to consider, this fundamental point.
CONCLUSION.
Litigants are now asking judges to take notice of international law. As the
volume of international trade increases, the number of disputes involving
international law is bound to increase as well. Connecticut has codified its
treaty obligations better than most states so it is fairly simple for
practitioners to find the applicable international law. Connecticut attorneys
will have to become familiar with that law or risk losing some of their clients'
business to other attorneys who are.
______________
Footnotes
*. Of the Meriden Bar; Chair of the Connecticut Bar Association's Section of
International Law and World Peace.
**. Vice President and General Counsel, Equator U.S.A. Incorporated,
Glastonbury.
1. The materials on "International Law for the General Practitioner: Serving
Process on Foreign Defendants; Obtaining Discovery Abroad; and Child Abduction
to a Foreign Country," a program presented by the Section of International Law
and World Peace at the Connecticut Bar Association's Midyear Meeting on November
18, 1994, are available from Connecticut Bar Association Continuing Legal
Education.
2. Thanks to R. Mark Chamberlain for comments on a draft of this section.
3. The Connecticut banking laws were re-codified effective January 1, 1995, by
P.A. 94-122, codified as CONN. GEN. STAT. Title 36a. See generally Yen, Deposit
Account and Related Provisions of Public Act 94-122, 5 Conn. Law., No. 2, at 10
(Oct. 1994); Samorajczyk, Connecticut's 1994 Banking Law Recodification Act: An
Overview (Part 11), 5 Conn. Law., No. 3, at 20 (Nov. 1994); Samorajczyk,
Connecticut's 1994 Banking Law Recodification Act: An Overview (Part 111), 5
Conn. Law., No. 4, at 20 (Dec. 1994/Jan. 1995). Note that some sections,
including §36a-425, were further amended by P.A. 94-1 (Oct. Spec. Sess.), which
is discussed in the text at note 13 infra; this trail may be slightly confusing
to the uninitiated, because EA. 94-425 as "Section 36-5a of the general
statutes, as amended by section 188 of public act 94-122."
4. This subsection was added by P.A. 81-124. The Banking Commissioner construed
this exception as limited to loans the proceeds of which were used for the
purchase or improvement of a residence, thus excluding, for example,
unrestricted home equity loans and loans for commercial purposes secured
residential real estate. See Flynn, Foreign Bank Lending and the Transacting
Business Prohibition, 5 CONN. B. J. 410, 419-20 (1984). However, in 1987,
§36-5a(g) was amended to apply to all mortgage loans, whether or not
residential. P.A. 87-205. See also Southbridge Savings Bank v. Koinonia School
of Sports, Inc., 2 Conn. App. 81 (1984).
5. P.A. 83-411. See generally Millman, Non-New England Banks in Connecticut-The
Permissible Activities, 106 BANKING L. J. 551 (1989). See also Northeast
Bancorp, Inc. v. Board of Governors of the Federal Reserve System, 472 U.S. 159
(1985), upholding, as constitutional and consistent with federal law, the
Connecticut and Massachusetts laws permitting interstate banking limited to New
England states granting reciprocal privileges. The principal objections were
from New York, which adopted a law granting reciprocal privileges but did not
meet our test because it is not in New England.
6. P.A. 83-60, P.A. 83-411, PA. 84-329.
7. Former CONN. GEN. STAT. §36-5a(d).
8. The latter date was established by EA. 84-329 and continues to be found in
CONN. GEN. STAT. §36a-425(c)(4) (formerly §36-5a(c)(4)).
9. P.A. 90-2, the heart of which was former §§36-553 (now §36a-411), 36-554
(repealed effective Jan. 1, 1995), 36-555 (now §36a-412) and 36-556 (repealed
effective Jan. 1, 1995). See generally Hebb & Love, Developments in Banking Law,
64 CONN. B. J. (Special Issue) SI-132 (1990).
10. See note 3 supra.
11. CONN. GEN. STAT. § 36a-425(a). The odd statement that lending does not
constitute transacting business, when what is meant is that lending is
permitted, is an artifact of the history of §36-5a. Its predecessors have caused
some confusion with the general requirement that any foreign corporation obtain
a certificate of authority before doing business in Connecticut. Section
36a-425(a) now concludes by saying, "Notwithstanding the provisions of this
subsection, a foreign banking corporation which transacts business in this state
for the purposes of section 33-396 or 33505 shall comply with the requirements
of such sections." The third sentence of §36a-428 makes the same point with
respect to a foreign bank that elects Connecticut as its "home state."
12. Cf CONN. GEN. STAT. §36a-425(b), last sentence.
13. P.A. 94-1 (Oct. Spec. Sess.), codified principally in CONN. GEN. STAT. §
§36a428-428m (banking provisions) and § 12-2 7u (tax provisions). Former
§36-5a(c), now §36a-425(c), was given a new subsection (6) and former §36-59,
now §36a145, was given new subsections (g) and (h)(2).
14. 12 U.S.C. §§ 3101 et seq.
15. CONN. GEN. STAT. §3a-2(30) and 12 U.S.C. §3101(7).
16. CONN. GEN. STAT. §12-217u(c).
17. See generally Lowry & Schroth, Survey of 1991 Developments in International
Law in Connecticut, 66 CONN. B. J. 64, 65-75 (1992) (hereinafter "1991 Survey"),
in which P.A. 91-324 is referred to as the "1991 Omnibus Act." Several
discussions of the two Hague Conventions considered in this section appear in
Symposium, The Hague Conference on Private International Law, 57 LAW & CONTEMP.
PROBS., No. 3 (1994).
18. In Connecticut practice, an order of notice does not include a summons.
However, local commentators have never explained why an order of notice does not
contain language summoning the defendant to appear.
19. Such as CONN. GEN. STAT. §52-5W~the general long arm statutes), CONN. GEN.
STAT. §52-62(a) (which makes the Commissioner of the Department of Motor
Vehicles the agent for service of process of a non-resident who uses a motor
vehicle in Connecticut) and CONN. GEN. STAT. §33-411 (the foreign corporation
long arm statute).
20. Nov. 15, 1965, 658 U.N.T.S., 20 U.S.T. 361, T.I.A.S. No. 6638, entered into
force for the United States Feb. 10, 1969. The Hague Service Convention is
reprinted in a note at 28 U.S.C.A., Fed.R.Civ.P. Rule 4, and in the
MARTINDALE-HUBBELL LAW DIRECTORY (in the 1995 edition, the relevant volume is
labeled "Argentina Venezuela Law Digests/Selected International Conventions").
See 1991 Survey note 17 supra, at 65-68.
21. 486 U.S. 694 (1988). The Supreme Court's decision in Schlunk caused a furor
in the international community. See e British diplomatic note to United States
Department of State, February 10, 1991, State Dept. Doc. L/PIL Doc. AC 44/HC/ 3
(hereinafter "British Diplomatic Note") ("The British Government notes ... the
Supreme Court's decision in the Aerospatiale case . . . . although, with
respect, it does not necessarily accept that this decision correctly represents
the position in international law."); Dyer, Check list for the Discussions of
the Special Commission of April 1989 on the Operation of the Hague Conventions
on the Service of Process Abroad and on the Taking of Evidence Abroad, State
Dept. Doc. L/PIL Doc. AC 42/ HC/3 (1989); Symposium, note 17 supra, passim.
22. Which is approximately the most distant return date allowed by CONN. GEN.
STAT. §52-48(b).
23. Compare Tacul S.A. v. Connecticut National Bank, text at notes 35-37 infra.
24. See 1991 Survey, note 17 supra, at 67 n. 15.
25. March 18,1970,847 U.N.T.S. 231,23 U.S.T. 2555, T.I.A.S. No. 7444, entered
into force for the United States Oct. 7, 1972. The Hague Evidence Convention is
reprinted as a note to 28 U.S.C.A. § 1981 and in the MARTINDALE-HUBBELL LAW
DIRECTORY (in the 1995 edition, the relevant volume is labeled
"Argentina-Venezuela Law Digests/S elected International Conventions"). The
Convention's concept of the taking 0 evidence includes both discovery and
preservation of testimony.
26. Note 33 infra. on the legislative purpose, see 1991 Survey, note 17 supra,
at 68-69.
27. It may be helpful in understanding other systems to realize that the
distinction we make between discovery and preservation of testimony usually does
not exist elsewhere.
28. See 1991 Survey, note 17 supra, at 68 n. 18.
29. See generally Born & Vollmer, The Effect of the Revised Federal Rules of
Civil Procedure on Personal Jurisdiction, Service, a Discovery in International
Cases, 150 F.R.D. 221 (1993).
30. Corporations and associations are covered by the reference to Rule 4(f) in
Rule 4(h)(2), which authorizes service abroad on them "in any manner prescribed
for individuals by subdivision J) except personal delivery .... "
31. Rule 4(f) applies to "service upon an individual from whom a waiver has not
been obtained and filed. . . . " Fore the waiver procedure , see Rule 4 (d) (2),
which applies to individuals, corporations and associations. Other countries may
not see any difference between service and waiver, particularly because they do
not believe a private person is entitled to "waive" the sovereignty of his
country, so practitioners should be careful to consider the international
implications even when a waiver is available. For example, the British
government protested this aspect of the proposed federal rule in the British
Diplomatic Note, note 21 supra.
32. E.g., Downes v. Ryobi America Corp., 1993 Conn. Super. LEXIS 640 (March 12,
190, discussed in 1993 Survey, note I supra, at 232-233.
33. 482 U.S. 522 (1987), discussed in 1991 Survey, note 17 supra at 68-69.
34. At least five cases involving international issues were decided by the
United States Court of Appeals for the Second Circuit but are not discussed in
this article because they arose in New York or, in one case (Kollias), on the
high seas between Texas and California. Commercial Bank of Kuwait v. Rafidain
Bank, 15 F.3d 238 (2d Cir. 1994) (Foreign Sovereign immunities Act); Kollias v.
D & G Marine Maintenance, 29 F.3d 67 (2d Cir. (1994) (extraterritoriality of
Longshore and Harbor Workers' Compensation Act); Seetransport Wiking Trader
Schiffabrtgesellschaft mbH & Co. KG v. Navimpex Centrala Navala, 29 F.3d 79 (2d
Cir. 1994) (Uniform Foreign Money Judgments Recognition Act); Jones v. Sea Tow
Services Freeport NY Inc., 30 F.3d (60 (2d Cir. 1994) (New York Convention on
the Recognition and Enforcement of Foreign Arbitral Awards); Lafarge Coppee v.
Venezolana de Cementos, S.A.C.A., 31 F.3d 70 (2d Cir. 1994) (New York Convention
on the Recognition and Enforcement of Foreign Arbitral Awards). Wiking Trader is
discussed in Recent Decision, New York Uniform Foreign Money Judgments
Recognition Act: Exequatur Awards Held to be Enforceable When Arbitration Awards
are Time-Barred, 8 N.Y. INT'L L. REV. 111 (1995).
35. Civil Action No. 2:88-CV-0855 (AVC).
36. Tacul S.A. v. Hartford National Bank, 693 F.Supp. 1399 (D.Conn. 1988).
37. CONN. GEN. STAT. §50a-30 et seq.
38. 11 Conn. L. Rptr. 112 (April 4,1994).
39. CONN. GEN. STAT. §52-604 et seq.
40. CONN. GEN. STAT. §52-604:
Definition of foreign judgment. As used in sections 52-604 to 52-609, inclusive,
"foreign judgment" means any Judgment, decree or order of a court of the United
States or IT any other court which is entitled to full faith and credit in this
state, except one obtained by default in appearance or by confession of
judgment. [emphasis added]
41. CONN. GEN. STAT. §50a-30 et seq.
42. 11 Conn. L. Rptr. No. 4 at 113.
43. Ibid.
44. 1994 Conn. Super. LEXIS 2578 (October 12, 1994).
45. Note 20 supra.
46. Discussed in the text at notes 18-24 supra.
47. "If service of process cannot be made under the applicable treaty or
convention within sixty days, the superior court may, upon application, order
service of process upon such terms as the court deems reasonably calculated to
give the defendant actual notice of the proceedings in sufficient time to enable
the defendant to defend."
48. One of the authors has seen delays of five months for the United States
Department of justice to serve process.
49. CONN. GEN. STAT. §52-48(b): "All process shall be made returnable not later
than two months after the date of the process and shall designate the place
where court is to be held."