By HOUSTON PUTNAM LOWRY (fn*) AND PETER W SCHROTH (fn**)
Except for the rare practitioner who may be dealing with
arbitration between a private party and a foreign government, there has not been
much change in Connecticut international law over the past year. There are
encouraging signs, however, of the courts' increasing familiarity with already
existing international law. As lawyers and the courts gain experience in the
international law area, ambiguities will be resolved, permitting the
practitioner to give legal advice With more confidence.
Part I of this article describes the new Connecticut statute on enforcement of awards of the International Centre for the Settlement of Investment Disputes ("ICSID") and the Permanent Court of Arbitration ("PCA"). Part 11 reports briefly on the new UNIDROIT Principles of International Commercial Contracts. Part III is a discussion of recent decisions in the Connecticut courts. (fn1,2)
An Act Concerning Enforcement of Certain International Awards (fn3), which was enacted in Connecticut effective October 1, 1995, codifies existing law that arbitral awards from two international bodies created by treaty, the PCA (fn4) and ICSID, (fn5) are immediately enforceable in Connecticut without appeal. The Act codifies for Connecticut the implementation of United States treaty obligations (fn6) of nationwide application, which should be, but so far are not, codified in the United States Code.
Unlike regular arbitration awards, by treaty these awards are not subject to review or appeal under domestic legislation (fn7) because at least one country is a party to the proceedings. (fn8) PCA and ICSID awards must be enforced as if they were final judgments of a domestic court. The ICSID Convention, for example, provides in Article 41 (1) that "The Tribunal shall be the judge of its own competence," in Article 52 for an appeal within ICSID of the Tribunal's decision and in Article 53(l) that "The award ... shall not be subject to any appeal or to any other remedy except those provided for in this Convention." It is the law, however unsettling American lawyers and courts may find it, that state and federal courts may not even review the arbitral tribunal's finding of jurisdiction without violating the treaty. (fn9)
ICSID awards must be certified by the Secretary- General of ICSID before they can be enforced, (fn10) whereas PCA awards do not need to be certified. Interim awards from either body do not have to be certified to be enforced.
ICSID and the PCA are attractive fora for disputes between a country and a private party. Aside from the extreme lack of congestion in both institutions, the PCA now offers updated Rules, which draw inspiration from the 1976 UNCITRAL Arbitration Rules (fn11)-the standard by which modern arbitration rules are judged and the model from which some of them are closely copied-as well as the UNCITRAL Model Law on International Commercial Arbitration (fn12) and the 1988 International Chamber of Commerce ("ICC") Rules of Arbitration. (fn13) The PCA's 1962 Rules of Arbitration and Conciliation for Settlement of International Disputes between Two Parties of which only one is a State ("1962 Rules") (fn14) were beginning to show their age and limitations in the early 1990s. For example, they did not automatically allow for the appointing authority to appoint arbitrators if the parties defaulted in making appointments. (fn15)
Recognizing these developments, in 1993 the PCA promulgated new "Optional Rules for Arbitrating Disputes between Two Parties of which only one is a State" ("1993 Rules"), (fn16) which are intended to supersede the 1962 Rules. There is also a new recommended arbitration clause for contracts, (fn17) which, quite unlike the earlier version, contains essentially the same elements as the UNCITRAL recommended clause (albeit arranged and worded differently), plus an optional waiver of sovereign immunity from execution.
Most of the provisions of the 1993 Rules are directly copied from the UNCITRAL Arbitration Rules. In general, they will be unsurprising to lawyers familiar with the UNCITRAL and ICC rules or the American Arbitration Association's International Arbitration Rules, (fn18) but some points should be noted. Following a European trend, Article 1, Paragraph 2 of the 1993 Rules provides that an agreement to arbitrate constitutes a waiver of immunity only from jurisdiction unless there is also (as in the optional clause just mentioned) an explicit waiver of immunity from execution. From the American lawyer's point of view, the essential purpose of the arbitration clause is defeated if the non-state party receives an arbitration award upon which it cannot obtain execution, so it is important to insist on making the waiver of immunity from execution explicit. However, if there is a possibility of execution in the United States, consideration should be given to expanding the PCA's recommended waiver clause. (fn19)
Unless otherwise agreed, Article 19, Paragraph 3 permits the respondent to introduce counterclaims only if they arise out of the same contract. If not, a separate arbitration must be started.
Article 21, Paragraph 2 (fn20) codifies the Kompetenz-kompetenz rule: (fn21)
The arbitral tribunal shall have the power to determine the existence or the validity of the contract of which an arbitration clause forms a part. For the purposes of this article, an arbitration clause which forms part of a contract and which provides for arbitration under these Rules shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.
Article 31, Paragraph 2 (fn22) of the 1993 Rules provides that all decisions must be made by a majority of the arbitrators. This is the usual rule, but perhaps not the best when there are party appointed arbitrators, because it forces the chairman to side with one of the party-appointed arbitrators to form a majority, rather than making what he considers a neutral decision.
Article 32, Paragraph 3 follows the UNCITRAL Arbitration RuleS23 in requiring the tribunal to state the reasons upon which the award is based, unless the parties have agreed that no reasons are to be given. Although this is not the standard for domestic arbitration in the United States, it is normal for international arbitration. (fn24)
II. PRINCIPLES OF INTERNATIONAL COMMERCIAL CONTRACTS
Late in 1994, the International Institute for the Unification of Private Law in Rome ("UNIDROIT") issued its long awaited Principles of International Commercial Contracts ("Principles 11). (fn25) This volume of about 275 pages is intended to be a "restatement-like" product containing the general rules that apply to international commercial contracts.
Although the members of the working group acted as individuals and not as representatives of their governments, the United States viewpoint was ably represented by Professor E. Allan Farnsworth of Columbia University Law School, who served as chairman of the Editorial Committee and is a member of the UNIDROIT Governing Council.
The Principles state a general principle of contract law in "black letter" form, as a sentence or short paragraph. Each general principle is explained by a page or two of commentary There is no scholarly apparatus, such as references to the laws of various countries and the reasons for the drafters' choices between them, although the comments occasionally refer to provisions of the CISG Convention. (fn26) In general, the Principles provide an excellent restatement of major portions of the lex mercatoria: the internationally accepted principles governing international commercial contracts. There is considerable common ground in this area and most of the Principles would be at least a reasonable approximation of the law of a great many countries.
Choice of governing law is sometimes a difficult issue when international contracts are drafted, because each party may be unfamiliar with and therefore distrustful of the other's national law. One purpose of the Principles is to provide an alternative free from any such nationalistic origins. We are not aware of any court that would accept such a document as the governing law of a contract, and the Principles are not intended to be adopted as national law, but they could be incorporated by reference in contracts (perhaps in the manner of the Uniform Customs and Practice for Documentary Credits, ICC Publication No. 500) or by arbitrators permitted to decide ex aequo et bono or according to a standard such as "general principles of law," "usages and customs of international trade" or "lex mercatoria." (fn27)
Whether this is viewed as desirable seems likely to depend on the expected dispute resolution scheme, which is to say on the anticipated cost of litigation. If United States-style discovery and trial are the likely mechanism, we would avoid the Principles, but if international arbitration is provided for, we would consider their use. This is because when the Principles find it necessary to choose between equity and certainty, they choose equity. For example, there are German-style general clauses, such as Article 1.7:
(1) Each party must act in accordance with good faith and fair dealing in international trade.(fn28)
(2) The parties may not exclude or limit this duty. The Principles also require "good faith" in negotiations in Article 2.15:
(1) A party is free to negotiate and is not liable for failure to reach an agreement.
(2) However, a party who negotiates or breaks off negotiations in bad faith is liable for the losses caused to the other party.
(3) it is bad faith, in particular, for a party to enter into or continue negotiations when intending not to reach an agreement with the other party.
That said, it must be emphasized that the Principles are a very valuable contribution to the toolkit of the international commercial lawyer, with likely uses ranging from quick orientation in internationally accepted usages (as distinguished from those of the particular legal system in which one of us happens to have been trained) to precise and reliable translations of common and less common terms (the Principles are now available in English, French, Italian and Spanish).
A. The Child Abduction Convention.
Setter v. Setter (fn29) was a divorce and custody action. It is of interest here because the defendant acted on his belief and he would get a better result by taking his two daughters to Israel and filing his own action in the courts there. He did this despite the advice of several Connecticut attorneys to the effect that the Hague Convention on the Civil Aspects of Child Abduction ("Child Abduction Convention" ) (fn30) would require the children to be returned to the United States.
His similarly well advised wife, the plaintiff in the Connecticut action, responded with an action in the Israeli court based on the Child Abduction Convention and the Israeli court promptly ordered the defendant to return the children to the plaintiff at her place of residence in Connecticut within one week. The Israeli court, as quoted in Judge O'Sullivan's decision, characterized the husband's action as "an act of kidnapping" (fn31) and said that the Child Abduction Convention "was achieved because the path of every kidnapper is to try to improve his legal status but is so doing he causes the children harm so that the act of kidnapping is, in fact, injurious and is thus, in principle, damaging to the child's interest...." Ironically, it appears that the Connecticut court considered the abduction to weigh against the husband in the divorce and custody action, so that he actually worsened his legal position in a misguided effort to improve it.
B. Two Cases on the Hague Service Convention.
A frequent subject in these pages (fn32) has been the Hague Convention on the Service Abroad of judicial and Extra-judicial Documents in Civil or Commercial Matters ("Hague Service Convention"), (fn33) which imposes on service of process across national boundaries certain "due process" standards significantly higher than those set for wholly domestic cases by the Connecticut Practice Book. The United States Constitution specifies that treaties trump state law. (fn34) In its much criticized (fn35) decision in Volkswagenwerk v. Schlunk, (fn36) the United States Supreme Court allowed the Illinois courts to deem the wholly owned U.S. subsidiary of a German corporation the latter's agent for service of process, so that service was completed when the subsidiary was served in Illinois and the Convention did not apply. What immediately became known as the "Schlunk exception" was such a striking departure from the international understanding of the Hague Service Convention that the Supreme Court itself acknowledged that "parties that comply with the Convention ultimately may find it easier to enforce their judgments abroad." (fn37) The Justice Department, considering the possibility that such an "exception" might gobble up the Hague Service Convention's rule, told the Supreme Court in an amicus curiae
brief that treating substituted service on a secretary of state as completed within the United States - which was not in fact approved by the Supreme Court and would go far beyond the actual "Schlunk exception" - would violate not only the Hague Service Convention but also the due process clause. (fn38)
Connecticut rejected the "Schlunk exception by statute and in the Practice Book. To put the hierarchy beyond doubt, at least in Connecticut, § 52-59d(a) of the General Statutes provides:
Notwithstanding any provision of the general statutes relating to service of process, civil process shall not be served outside the United States of America in violation of any applicable treaty or convention, including without limitation, the Hague Convention on Service of Process Abroad. (emphasis added)
Section 202A of the Practice Book explicitly separates
substituted service on the Secretary of the State from the "Schlunk exception"
by requiring the court to consider, in determining the manner in which notice
must be given:
"(5) whether or not an actual agent of the party being served can be served within the United States. (emphasis added)"
In Celik v. Dundar, (fn39) the defendants moved for dismissal on the ground that service of process was insufficient under §§52-59b and 33-411(d) of the General Statutes - which make the Secretary of the State a foreign corporation's agent for service of process in certain circumstances - and under the Hague Service Convention. Notwithstanding § 52-59d(a), Judge D'Andrea, in his first decision on an issue of international law, ruled:
The defendants have also argued in their memorandum in support of their motion that the plaintiffs service of process does not comportA4th provisions of the Hague Convention relating to service of process upon parties in foreign countries. The defendants' contention, however, is premised upon an argument that § 52-59b(c) requires the plaintiff or sheriff to mail the writ, summons and complaint to [the defendants] at their residences in Turkey. § 5259b(c), as discussed above, does not support the defendants' contention. Therefore, since service comported with the requirements of § 52-59b(c), the Hague Service Convention does not apply. See Vokswagenwerk Aktiengesellschaft v. Schlunk, [citation omitted] (The Hague Service Convention did not apply when process was served on a foreign corporation by serving its domestic subsidiary which, under state law, was that foreign corporation's involuntary agent for service.) Non-compliance with the Hague Service Convention does not then provide grounds upon which to grant the defendant's motion to dismiss.
In short, § 52-59d(a) of the General Statutes and § 202A of the Practice Book were adopted for the purpose of eliminating the "Schlunk exception" in our state's courts. In Celik, however, without mentioning either § 52-59d(a) or § 202A, judge D'Andrea cited only Schlunk for a dramatic broadening of the "Schlunk exception," resulting in a rule that finds no support in Schlunk itself and has been characterized as constitutionally suspect by the justice Department. This is not a close case - the holding is simply wrong. (fn40)
In contrast, in Robillard v. Asahi Chemical Industry, (fn41) Judge Corradino gave appropriate weight to § 52-59d, which he quoted in full, and to the Hague Service Convention. The facts resembled those in Buitekamp v. Zotos International, Inc., (fn42) which we discussed last year,(fn43) but the result is much more satisfactory. In Robillard, on June 16, 1994, the sheriff, pursuant to 52-59b of the General Statutes, served copies of the complaint on the Secretary of the State and sent a copy of the complaint to the defendant by certified mail to its address in Japan. (fn44) He simultaneously initiated service of process under the Hague Service Convention by forwarding copies of the complaint to a service company for translation and forwarding to the Japanese Central Authority. Five weeks later, the plaintiff applied to the court for an extension of time, pursuant to § 52-59d(b), to complete service under the rules of the Hague Service Convention. Counsel for the defendant appeared not only to object to the plaintiff's application to extend the return date, but also to move to dismiss the action for failure to serve the defendant pursuant to the Hague
Service Convention twelve days before the return date. (fn45)
Two months after that, on September 19, 1994, the court not yet having ruled on the plaintiff's application or the defendant's motion, plaintiffs counsel informed the court by affidavit that he has been advised that the Japanese Central Authority might refuse to serve the complaint without an accompanying court order extending the return date for sufficient time (believed to be 120 days) from the date of the order to allow the Japanese Central Authority to effect service. The court responded by granting an extension of time and denying without prejudice the defendant's motion to dismiss.
Three months after the court's order, on February 9,1995, "unbeknownst to the plaintiff' (fn46) the Japanese Central Authority made personal service of the documents on an employee of the defendant. Despite repeated inquiries by the plaintiff and the service company, however, an additional four weeks passed before the Court Clerk of the Tokyo District Court executed the Certificate of Service required under Article 6 of the Hague Service Convention and five more weeks after that before the certificate found its way through Japanese diplomatic channels and was delivered to the service company on April 11, 1995, by way of the Japanese Consulate in Chicago, Illinois. Nearly ten months had elapsed since the sheriff initiated the procedure and it took four more weeks to get the documents to Connecticut and properly filed with the court.
As the Connecticut courts are learning through experience, it takes at least six months to serve a complaint in Japan pursuant to the Hague Service Convention, a reality that cannot be accommodated within the two-month limit for return dates specified in § 52-48(b) of the General Statutes. Article 15 of the Hague Service Convention requires that the judge in the state of origin allow "a period of time of not less than six months, considered adequate by the judge in the particular case .... since the date of the transmission of the document" and that "every reasonable effort" be made to obtain the Certificate of Service from the Central Authority of the defendant's country before giving judgment without completion of the Hague Service Convention procedure.
Judge Corradino recognized this problem and discussed how it is resolved by § 52-59d(b). "First, as Volkswagenwerk v. Schlunk dictates the liberal goals sought to be achieved by the Convention shall not defeated by local rules of service of process, and the statute as it must, recognizes this." (fn47) As a matter of due process required by the United States and Connecticut Constitutions, the foreign defendant must be given notice of the lawsuit in sufficient time to appear and to defend it. This statute (and Practice Book § 202A) give the courts a great deal of discretion in achieving these goals. There was no showing of actual prejudice or failure to receive notice - indeed, the defendant's counsel was making motions in the Connecticut court only five weeks after the Hague Service Convention procedure was initiated. "Given the broad purposes of the Hague Convention, the requirements of the Supremacy clause and the fact that § 52-59(b) itself makes the court's power to act dependent on considerations of actual notice and actual prejudice to the right to defend" and "in the absence of a showing of actual prejudice," (fn48) the court extended the return date to May 30, 1995, a date subsequent to the plaintiffs filing of the required documents.
The PCA and ICSID developments reported this year represent a small part of a large phenomenon: the maturity of international commercial arbitration, whose institutions have achieved a degree of consistency of approach and practical effectiveness throughout most of the world that is matched by only a few courts. Both in the context of international arbitration and in that of international contracts generally, commercial lawyers should consider the UNIDROIT Principles as part of a growing body of usages that are not specific to any national legal system.
Perhaps nothing seems more local than our Practice Book, but service of process and discovery involving foreign residents or companies absolutely requires close attention to treaties and to foreign law. The General Statutes and the Practice Book now make these points explicitly, but there is no getting around the difficulties in applying them, particularly for lawyers and judges who were not exposed to them in law school or in their prior practice. We applaud Judge Corradino and hope to see more decisions like Robillard.
*. Of the Meriden Bar. Chair of the Connecticut Bar Association's Section of International Law and World Peace.
**. Of the Glastonbury Bar. Vice Chair of the Connecticut Bar Association's Section of International Law and World Peace.
1. We do not analyze it here because we think the tax issues deserve a more extensive treatment than reasonably fits into this survey article, but international business; lawyers should take note of SLY International Corp. v. Commissioner of Revenue, decided by the Connecticut Supreme Court on February 27, 1996. The plaintiff, a Delaware corporation with its principal place of business in Connecticut, and a foreign sales corporation incorporated in the United States Virgin Islands were wholly owned subsidiaries of a Florida corporation not authorized to do business in Connecticut. The Commissioner of Revenue Services, treating the FACT as "in essence a paper corporation that had no economic substance," disallowed the plaintiff's deduction of commissions paid to the FACT and assessed tax on the basis that the commissions were in substance dividends paid to the Florida parent. The trial court upheld the Commissioner on the alternative grounds (a) that the deduction was in fact related to dividends and therefore not authorized by CONN. GEN. STAT. § 12217(a)(D)(1) or (b) that the adjustment was within the Commissioner's discretionary
authority under CONN. GEN. STAT. § 12-226a. The Supreme Court reversed, allowing the deductions. In doing so, it distinguished Bolt Technology Corp. v. Commissioner of Revenue, 213 Conn. 220, 567 A.2d 371 (1989), primarily on the ground that FSCs have more economic substance than DISCs.
2. A program entitled "An International Business Client for the
Small Firm: A Practical Guide to Doing Business in Canada" was presented by the
Section of International Law and World Peace at the Connecticut Bar
Association's Mid ear Meeting on November 17, 1995. The written materials can be
obtained from Connecticut Bar Association Continuing Legal Education, but
unfortunately no recording is available.
3. P.A. 95-248, to be codified in Title 50A of the General Statutes. The act reads as follows:
Section 1. (NEW) For the purposes of this act:
(1) "International award" means any final award issued by: (A) An arbitral tribunal of the Permanent Court of Arbitration; or (B) an arbitral tribunal of the International Center for the Settlement of Investment Disputes.
(2) "Interim award" means any order of interim measures issued by: (A) An arbitral tribunal of the Permanent Court of Arbitration; or (B) an arbitral tribunal of the International Center for the Settlement of Investment Disputes.
Section 2. (NEW) Any international award shall be enforceable as if such international award was a final and binding judgment issued by the superior court of this state and any applicable appeal time as expired. An execution may immediately issue on an international award upon filing with the superior court.
Section 3. (NEW) Any interim award shall be enforceable to the same extent and in the same manner as a similar order of the superior court for which any applicable appeal time has expired.
Section 4. (NEW) Upon receipt of a copy of any interim or international award certified by the appropriate authority, the superior court shall issue all necessary orders to enforce any interim award in accordance with chapter 903a of the general statutes and any international award in accordance with chapter 906 of the general statutes. Such orders shall be immediately appealable in the same manner as orders in aid of execution of a judgment issued by the superior court.
4. Based in The Hague, The Netherlands and created by the 1899
Hague Convention for the Pacific Settlement of International Disputes ("1899
Hague Convention"), 32 Stat. 1779, 1 Bevans 230. The United States became a
party to the 1899 Hague Convention on September 4, 1900. The United States
became a party to the 1907 Hague Convention on Pacific Settlement of
International Disputes ("1907 Hague Convention") on January 26, 1910, 36 Stat.
2199, 1 Bevans 577. For general discussion and the Permanent Court of
Arbitration's 1962 Rules of Arbitration and Conciliation for Settlement of
International Disputes between Two Parties of which only one is a State, see H.P.
Lowry, Critical Documents Sourcebook Annotated: International Commercial Law and
Arbitration 261-280 (1991) ("Sourcebook"). Please note, however, that the 1962
Rules have been superseded by new Rules adopted in 1993, as explained below.
5. Based in Washington D.C. and part of the World Bank family of organizations. The Convention on the Settlement of International Investment Disputes between States and Nationals of Other States ("ICSID Convention"), 17 U.S.T. 1270, T.I.A.S. No. 6090, 575 U.N.T.S. 159, was opened for signature on March 18, 1965. The United States became a party on October 14, 1966, the date it came into force. For general discussion, the text of the ICSID Convention and the ICSID Rules of Procedure for the Institution of Conciliation and Arbitration Proceedings and Rules of Procedure for Arbitration Proceedings, see Sourcebook, note 4 supra, at 313-344.
6. 1899 Hague Convention Articles 31 and 54; 1907 Hague Convention Articles 37 and 81; and71965 ICSID Convention Article 54.
7. Such as the UNCITRAL Model Law on International Commercial Arbitration, CONN. GEN. STAT. § 50a-100 et seq., or the Federal Arbitration Act, 9 U.S.C. et seq.
8. ICSID has an internal mechanism that provides for interpretation, revision or annulment of the award under certain circumstances. ICSID Convention, note 5 supra, Article 50 et seq,. There is no analogous procedure for awards issued by the Permanent Court of Arbitration.
9. See also CONN. GEN. STAT. § 50a-116 (the provision of the UNCITRAL Model Law on competence of an arbitral tribunal to rule on its own jurisdiction).
10. ICSID Convention, note 5 supra, Article 54(2).
11. G.A. Res. 31/98, U.N. GAOR, 31st Sess., Supp. No. 17, U.N. Doc. A/31/17, chap. V, sec. C, adopted Dec. 15, 1976. Reprinted in Sourcebook, note 4 supra, at 372-392. See generally Sanders, Commentary on UNCITRAL Arbitration Rules, 2 Y. B. Com. Arb. 173 (1977).
12. Note 7 supra.
13. International Chamber of Commerce Rules of Arbitration (Jan. 1, 1988), reprinted in Sourcebook, note 4 supra, at 397-412.
14. See note 4 supra.
15. This is now covered in Articles 6 and 7 of the 1993 Rules.
16. Although these rules were adopted in late 1993, it took the authors until mid1995 to obtain a copy.
17. The new PCA recommended clause reads (notes omitted):
1. If any dispute arises between the parties as to the interpretation, application of performance of this contract, including its existence, validity or termination, either party may submit the dispute to final and binding arbitration in accordance with the Permanent Court of Arbitration Optional Rules for Arbitrating Disputes Between Two Parties of which only one is a State, as in effect on the date of this contract.
Parties may wish to consider adding:
2. The number of arbitrators shall be ... [insert 'one' or 'three'].
3. The language(s) to be used in the arbitral proceedings shall be ... [insert choice of one or more language].
4. The appointing authority shall be ... [insert choice].
5. This agreement to arbitrate constitutes a waiver of any right to sovereign immunity from execution to which a party might otherwise be entitled with respect to the enforcement of any award rendered by an arbitral tribunal constituted pursuant to this agreement.
18. American Arbitration Association International Arbitration Rules, effective March 1, 1991. Note that these rules supersede the "Supplementary Procedures for International Commercial Arbitration" reprinted in Sourcebook, note 4 supra, at 467-469.
19. "Given the literal construction likely for waivers on behalf of a foreign state, one who is negotiating for a waiver should obtain explicit agreement on all possible details, as well as express consent to service of process, jurisdiction, venue, and (if appropriate) prejudgment attachment." J.W DELLAPENNA, SUING FOREIGN GOVERNMENTS AND THEIR CORPORATIONS 201 (1988).
20. Like Article 16(l) of the UNCITRAL Model Law, CONN. GEN. STAT. § 50a116(l); Article 21, Paragraph 2 of the UNCITRAL Arbitration Rules; and Article 15, Paragraph 2 of the American Arbitration Association International Arbitration Rules.
21. See Sojuznefteexport v. JOC Oil Ltd., 4 Int'l Arb. Rep. B1 (July 1989); Sanoff, Sojuznefteexport v. JOC Oil Ltd.: A Recent Development in the Theory of the Separability of the Arbitration Clause, I AM. J. INT'L ARB. 157 (1990).
22. Like Article 31, Paragraph 2 of the UNCITRAL Arbitration Rules and Article 27, Paragraph I of the American Arbitration Association International Arbitration Rules. However, Article 19 of the ICC Arbitration Rules provides that "If there be no majority, the award shall be made by the Chairman of the arbitral tribunal alone."
23. Article 32, Paragraph 3
24. Including Article 28, paragraph 2 of the American Arbitration Association International Arbitration Rules.
25. UNIDROIT, INTERNATIONAL INSTITUTE FOR THE UNIFICATION OF PRIVATE LAW, PRINCIPLES OF INTERNATIONAL COMMERCIAL CONTRACTS (1994), ISBN 88-86449-00-3. For helpful discussion, see van Houte, The UNIDROIT Principles of International Commercial Contracts, 11 ARB. INTL 373-390 (1995); M.J. BONELL, AN INTERNATIONAL RESTATEMENT OF CONTRACT LAW: THE UNIDROIT PRINCIPLES OF INTERNATIONAL COMMERCIAL CONTRACTS (1994).
26. United Nations Convention on Contracts for the International Sale of Goods, 15 U.S.C.A. App. (West Supp. 1995), 19 I.L.M. 668; reprinted in the MARTINDALE HUBBELL LAW DIRECTORY. A recent Second Circuit decision discussing the CISG Convention is Delchi Carrier SpA v. Rotorex Corp 1995 U S App. LEXIS 34226 (2d Cir., Dec. 6, 1995). See also 1994 Survey, note 32 supra, at 225-227.
27. The authors of the Principles encourage their use in this way. Principles, note 25 supra, at 4-5.
28. Compare § 242 of the Burgerliches Gesetzbuch ("BGB"): "Der Schuldner ist verpflichtet, die Leistung so zu bewirken, wie Treu und Glauben mit Rucksicht auf die Verkehrssitte es erfordern." With some caution, comparisons can be drawn between §§138 and 242 of the BGB and §§1-203 and 2-302 of the Uniform Commercial Code, CONN. GEN. STAT. §§ 42a-1-203 and 42a-2-302. However, the attitude of American courts to the UCC provisions so far has not approached their broad and pervasive role in the German system, which somewhat resembles the role of some of our Constitutional concepts, such as due process.
29. 195 Conn. Su Lexis 315 (February 1, 1995).
30. 51 Fed. Reg., Cr: 58 (March 26,1986 ); reprinted in the MARTINDALE- HUBBELL LAW DIRECTORY. Implementing legislation is codified at 42 U. S.C. §11601. See generally Lowry & Schroth, Survey of 1991 Developments in International Law in Connecticut, 66 CONN. B.J. 64, 79-80 (1992) ("1991 Survey"). Practitioners should note that incoming parental abduction cases under the Child Abduction Convention will now be processed by the non-governmental National Center for Missing and Exploited Children, whose toll-free telephone number is (800) 843-5678. T e State Department's Office of Children's Issues retains a supervisory role and will continue to be the "Central Authority" for the United States under the Convention. 16 Fed. Reg. 7069 (Feb. 26, 1996).
31. We are not sure how much weight to give to the choice of the word "kidnapping," which is consistently used in place of "abduction" in the excerpts from the Israeli court's decision. This may well be merely a translation issue.
32. We have discussed the Hague Service Convention and its relationship to Practice Book § 202A and CONN. GEN. STAT. § 52-59d in Lowry & Schroth, Survey1994 Developments in International Law in Connecticut, 69 CONN. B.J. 143, V 149 (1995) ("1994 Survey"); Lowry & Schroth, Survey of 1993 Developments in International Law in Connecticut, 8 CONN. B.J. 222, 2~2-233 (1994); 1991 Survey, note 30 supra, at 65-68.
33. 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; reprinted in the MARTINDALE - HUBBELL LAW DIRECTORY.
34. U. S. CONST. art. VI, § 2.
35. See 1994 Survey, note supra, at 148 n. 21; Reisenfeld, Service of United States Process Abroad: A Practical Guide to Service Under the Hague Service Convention and the Federal Rules of Civil Procedure, 24 INT'L LAW 55, 63-66 (1990).
36. 486 U.S. 694 (1988). The reader should carefully note that Schlunk is full of strong statements supporting the Hague Service Convention, with which neither the authors nor Connecticut law takes issue. The disagreement relates only to the "Schlunk exception" described in the text.
37. 486 U.S. at 706.
38. Brief for the United States as Amicus Curiae Supporting Respondent at 2627, Volkswagenwerk Aktiengesellschaft v. Schlunk, note 36 supra. Reisenfeld, note 35 supra, at 65 n. 42, comments:
State laws permitting service of an out-of-state defendant through the state secretary of state or other state officials, such as an insurance commissioner ... may not provide an exemption from the Hague Service Convention. Most of these state laws require service of the summons and complaint on the secretary of state or other governmental official who then must transmit the summons and complaint to t e defendant through postal channels. Under these laws, the transmission of the documents directly to the defendant is an integral art of the legal requirement for effective service. Brief for the United States as Amicus Curiae Supporting Respondent at 26-27 .... The U.S. Department of justice believes that this practice should be regarded as "service abroad" and should be governed by the Convention. Id. If these laws do not require direct transmission to a defendant as an integral part of effective service, such service may not pass constitutional muster. See Schlunk, 108 S.Ct. at 2116 (Brennan, J., concurring).
39. 1995 Conn. Super, LEXIS 2050 (July 12, 1995).
40. Two other points should be made about Celik. First, the court agreed plaintiff complied with CONN. GEN. STAT. 52-59b(c) by mailing a copy of the writ, summons and complaint to the defendants' business addresses in New York and serving the Connecticut Secretary of the State. Ordinarily, however, the rule in Connecticut is that the defendants' home addresses are controlling and not their business addresses. This issue was not discussed by the court.
Second, plaintiff further claimed to have obtained jurisdiction over two of the defendants by serving Dr. Haluk Sahin, "whom [sic] the plaintiff says is a 'managing agent' as that term is employed in CONN. GEN. STAT. § 52-57(c). The opinion says very little about Dr. Sahin and nothing about where he was served. If it turns out that he was an actual agent of one or more of the defendants and that he was properly served in that capacity in Connecticut, the CONN. GEN. STAT. § 52-59d and Practice Book § 202A will have been fulfilled with regard to those defendants and the Hague Service Convention will not apply.
41. 1995 Conn. Super LEXIS 3109 (November 7, 1995).
42. 9 CSCR 1169, 1994 Conn. Super LEXIS 2578 (1994).
43. 1994 Survey, note 32 supra, at 156-157.
44. For Japan, sending service documents by mail is not objectionable, because the relevant declaration (reprinted in the MARTINDALE - HUBBELL LAW DIRECTORY) attached to Japan's ratification of the Hague Service Convention specifies only that "the Government of Japan objects to the use of the methods of service referred to in sub paragraphs (b) and (c) of Article 10." Article 10 refers in subparagraph (a) to sensing documents "by postal channels," in subparagraph (b) to service by judicial officers, officials or other competent persons of the State of origin ... directly through the judicial officers, officials or other competent persons of the State of destination" in subparagraph (c) to service b "any per on interested in a judicial proceeding" directly through the judicial officers, etc., of the State of destination. Some countries tolerate all three categories. A good many countries are like Japan in objecting only to the methods specified in subparagraphs (b) and (c). Some of the countries that object to the "postal channels" method specified in subparagraph (a) are Egypt, Germany, Norway and Turkey.
45. This is essentially the basis on which the defendant prevailed in Buitekamp, note 42 supra.
46. Robillard, note 41 supra, at 13 n. 1.
47. Robillard, note 41 supra, at n. 11.
48. 11 Id. at n. 13.