By HOUSTON PUTNAM LOWRY (fn*) AND PETER W. SCHROTH (fn**)
Last year, there were several interesting developments in Connecticut, (fn1) not all of them in judicial decisions. There were also significant developments in the (non-statutory) rules governing international arbitration and standby letters of credit.
The Connecticut Department of Economic and Community Development ("DECD") programs we mentioned last year (fn2) have grown to include representatives with offices in Argentina, Brazil, China, Israel, Mexico and South Africa. (fn3)
Through these representatives and other programs in the state, DECD provides advice, introductions and sometimes other forms of assistance to Connecticut companies seeking export markets or other international business activity. The Department's web site includes links to some key Connecticut statutes relating to international trade. (fn4)
From 1977 until recently, the United States stood alone in the world in making it a crime to bribe foreign officials in their own countries. Some of our country's exporters resented the advantage that seemed to be given to their competitors, some of whom (such as the Germans) could even take tax deductions for the "ordinary and necessary business expense" of bribery. One of us has had to listen several times to African lawyers patiently explaining that the extraterritorial reach of the Foreign Corrupt Practices Act (fn5) proved not only America's insufferable arrogance, but also its disregard for the fundamental principles of international law.
We don't see it as a violation of traditional international law to criminalize immoral and economically harmful foreign conduct of a country's nationals, but whether it is or not, international law can be changed by treaty. An important, early step in this direction is the 1996 Inter-American Convention Against Corruption, (fn6) which has been ratified by 16 countries (fn7) and signed, but not yet ratified, by 9 more. (fn8) Among the latter is the United States, where the opposition of Senator Helms is considered an insurmountable obstacle to the Senate's advice and consent to ratification at this time. (fn9) In 1997, the United Nations General Assembly provided an important impetus with its Declaration against Corruption and Bribery, in International Commercial Transactions, which called for criminalizing foreign bribery and denying tax deductibility of bribes. (fn10) Many U.N. entities now have anti-bribery programs, notably the Global Programme against Corruption established by the U.N. Centre for International Crime Prevention, the Office for Drug Control and Crime Prevention, the Interregional Crime and justice Research Institute, and the Programme for Accountability and Transparency of the United Nations Development Programme. There have been important initiatives also by the European Union (fn11 )and the Council of Europe. (fn12)
The most important recent step, however, is the 1997 OECD Convention on Combating Bribery of Foreign Public Officials, (fn13) which has been signed by all 29 members of the Organization for Economic Co-operation and Development and five other countries. This convention has been ratified by 15 countries, including the United States and such major trading countries as Belgium, Canada, (fn14) Germany, (fn15) Japan, Korea, the Netherlands and the United Kingdom. (fn16), (fn17) Among the other 18 signatories, (fn18) Austria, France and Sweden have adopted implementing legislation and may be expected to ratify it soon.
The United States implementing legislation is the International Anti-Bribery and Fair Competition Act of 1998, (fn19) which makes two major changes to the Foreign Corrupt Practices Act.(fn20) First, the jurisdictional reach of the statute has been extended to encompass not only bribes and other prohibited activities by U.S. citizens or entities, but also actions by foreign companies and citizens occurring within U.S. territory. (fn21) This nationality-based and territory-based jurisdiction increases the potential liability of U.S. corporations in some circumstances, such as foreign representatives offering bribes on behalf of their employers. Second, bribery of a government official is now a crime under the FCPA if the bribe is intended to secure any improper advantage. For example, bribing an official of a foreign regulatory agency to influence his decision on an environmental matter now has the same criminal status as bribing an official to obtain or to retain a government contract.
Banks in the United States ordinarily are not allowed to guarantee the obligations of their customers. (fn22) This gave the banks of other countries, which could do so, a competitive advantage until it was discovered that a letter of credit could be drafted to make the required document a statement that the customer had not fulfilled its obligations to the beneficiary, rather than the usual bill of lading, commercial invoice and so forth. (fn23) Indeed, this "standby" (because normally it is not intended to be drawn) letter of credit is widely considered superior to a traditional guaranty, because it does not provide the bank the traditional defenses of a guarantor. This led the banks of France and other countries to respond with the "first demand" guaranty, which functions almost as simply as a standby letter of credit.
International commercial letters of credit almost always state that they are subject to the latest version of the rules published from time to time since 1933 by the International Chamber of Commerce, which at present is the Uniform Customs and Practice for Documentary Credits, 1993 revision, ICC publication no. 500. (fn54) Standby letters of credit usually say the same, but often add, "to the extent the same may be applicable." In both cases, it is important to keep in mind that these rules are not the law of any jurisdiction, but only terms incorporated by reference in the contract that is the letter of credit.
In 1978, the ICC published Uniform Rules for Contract Guarantees, ICC publication no. 325. These rules were little used, and may never have been used at all for demand guaranties, because they required a judgment or arbitral award as a condition to payment. The Uniform Rules for Demand Guarantees, published in 1992 as ICC publication no. 458, eliminated this requirement, but we continue to see demand guaranties issued by European banks that do not mention these rules and we have never seen a standby letter of credit that referred to them. There is also an UNCITRAL Convention on Independent Guarantees and Stand-by Letters of Credit, (fn25) which at this writing has been ratified by Ecuador, El Salvador, Kuwait, Panama and Tunisia and will enter into force between them on January 1, 2000. The only other signatories are Belarus and the United States, so even if we eventually ratify it, the immediate impact on international standby letters of credit will be minimal.
The Institute of International Banking Law & Practice, Inc., a not-for-profit corporation based in Maryland, developed a statement of International Standby Practices and secured its adoption 1998 by the ICC, which has issued it as ICC publication no. 590, effective January 1, 1999. These rules were drafted to be compatible with the UNCITRAL Convention. It is uncertain, however, whether and how soon the banks will switch from the Uniform Customs and Practice to the International Standby Practices for their standby letters of credit, because the new rules are complex and full of unfamiliar details. We find them a significant improvement in many ways, but with a substantial learning curve to climb, some bankers are likely to say, at least until they see competitors using the new rules, that the system is working well enough already and doesn't need to be fixed.
Although some U.S. litigators may be upset, we suspect most international arbitration lawyers in other countries were pleased to see the Second Circuit's decision, in National Broadcasting Company, Inc. v. Bear Steams & Co., Inc., (fn26) that 28 U.S.C. §1782, which authorizes United States courts to order testimony and production of evidence for use "in a proceeding in a foreign or international tribunal," does not apply to commercial arbitration under the auspices of nongovernmental organizations such as the International Chamber of Commerce. (fn27)
Two leading organizations conducting international arbitration recently updated their rules. For ease of reference, and because of their value to practicing international lawyers, we are reprinting the new texts as addenda to this article.
A. New ICC Rules
Based in Paris, France, (fn28)the International Chamber of Commerce ("ICC") has promoted arbitration as an important method of settling international business disputes since 1923. It is the leading organization conducting formal, structured arbitration under the supervision of an arbitration court. (fn29) The ICC periodically refines its arbitration rules, (fn30) the most recent version (fn31) having become effective on January 1, 1998. The revised rules are effective for arbitrations commenced after that date, even where the arbitration clause was executed earlier.
A detailed discussion is beyond the scope of this article, (fn32) but we note that the new version of the rules retains the concept of the terms of reference, which is a type of submission agreement drafted by the arbitral tribunal and executed by the parties (and the arbitral tribunal), (fn33) and that the chair of the arbitral tribunal can still make decisions in the absence of a majority. The revised rules are not dramatically different from the old rules, but counsel should make sure to use the latest edition rather than the 1988 version when drafting contracts or commencing an arbitration.
B. New LCIA Rules
Based in London, England, (fn34) the London Court of International Arbitration ("LCIA!') has promoted resolving international disputes by arbitration since 1892. The LCIA made a fairly major revision to its arbitration rules, (fn35) effective January 1, 1998. Again, the revised rules govern arbitrations commenced after that date, even where the arbitration clause was signed earlier.
Some of the changes are minor; for instance, demands for arbitration now must contain not just the names and addresses of the parties, but also their telephone numbers, fax numbers and e-mail addresses and the names of their representatives. On the other hand, some are significant, such as the rule that if an arbitration demand is submitted without the necessary fees, the LCIA will treat the arbitration as not being commenced. This may be very important if there is a statute of limitations concern: otherwise stated, payment of the fees has become a jurisdictional prerequisite to commencing the arbitration.
Unlike the old version, the LCIA rules now allow for interim and conservatory measures. An arbitral tribunal is authorized not just to preserve evidence, but also to grant prejudgment remedies. This authority is substantially broader than most institutional rules that allow interim measures, which may encourage parties to select the LCIA rules.
A. CORRECTION
In last year's discussion of Lo v. Aetna International, Inc., (fn36) in which the defendant asked for dismissal on the ground of forum non conveniens, we said incorrectly that the plaintiff ,'moved to the United States and subsequently sued Aetna International at its home office in Connecticut . . . . ... (fn38) After our article was published, the lawyers for both sides let us know that the plaintiff remained a resident of Hong Kong. The facts, as so corrected, were that a United States citizen living in Hong Kong brought suit in Connecticut against a Connecticut corporation that was doing business in Hong Kong. The case thus provides less support than we thought for our proposition, "The plaintiff's choice of forum usually is given significant weight in such cases, and more so when, as here, the plaintiff can be seen as local," but we think it is accurate anyway. The defendant must make a strong case to overcome the plaintiff's choice of forum on the ground of forum non conveniens. (fn39) It is a significant point against forum non conveniens if, as usually is not the case, the defendant is local. It is also a significant point against forum non conveniens if, as usually is the case, the plaintiff is local. In Lo, the court pointed out that the plaintiff was a United States citizen, which we might stretch a little to say she could "be seen" as connected to a United States forum. In any event, our main point is not affected, namely that the court did not need to insult China because there was easily sufficient basis for rejecting forum non conveniens on traditional grounds.
A. A Prototypical Case: Harliwich v. Harliwich (fn40)
The Hague Convention on the Civil Aspects of International Child Abduction (the "Child Abduction Convention" )41 is now well known to family lawyers in many countries and we have discussed it in previous surveys. (fn41) Many parents, however, are neither family lawyers nor regular readers of our articles, so futile abductions continue. The latest case involved a couple married and divorced in New Zealand, which is a party to the Child Abduction Convention. Their son Dean's primary residence was with his mother, but his father had visitation rights. In 1998, the mother moved to Connecticut, primarily to be with a man she met on the internet, bringing Dean with her. The father applied to the Rockville Superior Court to have the boy returned to New Zealand pursuant to the Child Abduction Convention.
The general rule under the Child Abduction Convention is the child must be returned to the child's habitual residence immediately before the abduction. In this case, Dean's father was being denied access to his child, a breach of the father's custody rights under Article 3 of the Convention. (fn43) Dean's mother claimed the father had consented to the removal, but Article 13 (fn44) requires her to prove this by clear and convincing evidence. She failed to do this, so Dean was ordered returned to New Zealand, whose courts could determine custody and access.
B. Tate v. Tate (fn45)
In the context of a divorce, three people sought custody of a four-year-old boy: his mother, his father and his paternal grandmother. As is all too often the case, there was no really attractive alternative. The father was an acknowledged alcoholic. judge Gordon gave him some credit for acknowledging his problem, but was clear that he was not at present up to the job of parenting. The mother, a Brazilian national, was facing a deportation hearing, apparently (though the opinion does not make this entirely clear) for working while in the country on a tourist visa and for failing to disclose criminal convictions. Worse, the court found the mother to have a shocking record of neglecting and abusing both the subject child and her older daughter from another marriage and to have lied repeatedly to the court. The grandmother was the one who reported her own daughter-in-law to the INS, but also the only one who had provided a decent home to the child.
The court awarded joint custody to the grandmother and the father, who was living in his mother's home, with the stipulation that the child's primary residence was to be the grandmother's home if the father moved out. The mother was granted supervised visitation, with no overnight visits. The difficulty, however, was where: she had threatened to leave the United States with her son and go to Brazil, which is not a party to the Child Abduction Convention. Limiting visitation to Connecticut might well have prevented visitation entirely for a mother who seemed likely to be deported and thereafter unable to return.
Considering all of the reasonable possibilities, the court ordered visitation in Canada, which is a party to the Child Abduction Convention (fn46) and therefore likely to enforce a Connecticut custody decree. To reduce the risk that Mrs. Tate would try to flee Canada with her son, the court ordered her to surrender her passport to the nearest United States consulate immediately before visiting her son. (fn47)
C. Extradition
The United States is a party to some 110 bilateral extradition treaties, which fall into two general categories: some allow extradition if the conduct is a crime in both countries, while others contain lists of specific crimes for which extradition is allowed. The Extradition Treaties Interpretation Act of 1998 (fn48) authorizes interpretation of the word "kidnapping," when it appears in any of the roughly 75 "list" treaties, to include parental kidnapping (although neither the new statute nor the treaties make it a crime or require it to be made one). Congress cannot unilaterally amend a treaty, so we were glad to see the Legal Adviser's statement, "The United States would, however, adopt this broader interpretation only once it has confirmed with respect to a given treaty that this would be a shared understanding of the parties regarding that interpretation of the treaty in question." (fn49)
A. Raccolta, Inc. v. BBS Norwalk One (fn5O)
This was a foreclosure action, in which the court considered a motion for summary judgment. The international aspect of the case was noted in dicta. One of the, defendants, Hugo Bunzl, resided in Great Britain. (fn51) The court said summary judgment could not be granted against Mr. Bunzl because he was not properly served pursuant to the Hague Convention on the Service Abroad of judicial and Extra-judicial Documents in Civil or Commercial Matters ("Hague Service Convention") as required by Connecticut General Statutes §52-59d. (fn52) International law can now touch even a Connecticut foreclosure case!
B. Pavia v. Club Med (fn53)
Plaintiff Michael Pavia, Jr. slipped, fell and was injured while playing ping-pong at Club Med Buccaneer's Creek in Martinique. Of the several issues raised in a motion to dismiss, the one of interest here is whether Rule 4 of the Federal Rules of Civil Procedure required that the defendants be served under the Hague Service Convention. The plaintiff served the complaint by sending it via registered mail, return receipt requested, pursuant to Connecticut General Statutes §33-929(b). The complaint reached its intended destinations in Georgetown, Grand Cayman, and Paris, France, as evidenced by executed return receipts. The court held, however, that the plaintiff could not rely on Connecticut law to effect service of process, because the Hague Service Convention applied and preempted state law. Apparently neither the court nor the parties noticed that §52-59d of the General Statutes overrides §33-929(b).
The court then turned to the question whether service by mail is allowed by Hague Service Convention Article 10(a). (fn54) Neither the United Kingdom (acting for the Cayman Islands) nor France filed a reservation or an objection to Article 10(a). The court concluded service by registered mail was acceptable in this case because it gave the defendants actual and timely notice of the suit in sufficient time to defend against it, which effectuated the purposes of the Hague Service Convention.
A. First American Corp. v. Price Waterhouse LLP (fn56)
The sad saga of BCCI includes settlement, just three weeks before his death in October 1998, of the last of the civil cases against "super lawyer" and former Secretary of Defense Clark M. Clifford and his partner, Robert A. Altman. (fn57) One aspect of the case was the effort of two companies, alleged to have been acquired surreptitiously by BCCI through Clifford and Altman, to obtain discovery of information and documents held by Price Waterhouse United Kingdom Firm, an English partnership, which had been BCCI's auditor. The plaintiffs tried a letter rogatory to the English courts, but the Court of Appeal found the requests overbroad and oppressive. (fn58) In addition to the usual concerns of courts everywhere else in the world about the breadth and burden of U.S. discovery, the English court noted that questions to witnesses about allegations implicating Price Waterhouse as a knowing participant in the fraud could be the basis of an inference of guilty knowledge in a subsequent case against Price Waterhouse itself. The court suggested, therefore, that it would be better either to join Price Waterhouse as a defendant or to guarantee that civil proceedings would not be brought against it for this alleged conspiracy.
Perhaps following the former of these suggestions, the plaintiffs served a general partner of Price Waterhouse United Kingdom Firm, who was seconded to the New York office, both at his office in New York and at his home in Connecticut. The service in Connecticut was of course held to have no result for the purpose of establishing New York jurisdiction, but the service in New York was effective. The opinion includes an interesting discussion of the rule that service on a general partner subjects a partnership to personal jurisdiction.
Turning to the Hague Convention on the Taking of Evidence Abroad ("Hague Evidence Convention "), (fn59) the Second Circuit discussed and applied the rule of Societe Nationale Industrielle Aerospatiale v. United States District Court (fn60) that the convention's procedures need not necessarily be the first resort for parties seeking evidence from abroad. (Regular readers of this series are aware (fn61) that section 52-197b of the General Statutes and section 11-8 (formerly 236B) of the Practice Book reject Aerospatiale and do require first resort to the Hague Evidence Convention's procedures.) We found particularly interesting the court's discussion of the English courts' refusal to enforce the letter rogatory issued for the same purpose in the same case on the ground that it sought pretrial discovery rather than evidence for use at trial. After noting, optimistically, "We think that there is no risk that an American court will commit an error in interpreting foreign law," (fn62) the Second Circuit authorized the district court to order the usual, U.S.-style broad pretrial discovery on the explicit ground that the limited discovery allowed by the Hague Evidence Convention and English law would not be "meaningful" by American standards:
[T]he more PW-UK argues that the subpoena describes a great volume of its documents, the more PW-UK underlines the importance of its cache of documents to the discovery process. The costs of production may be great .... This request may be burdensome, but PW-UK has not convinced the district court, or us, that the burden is undue. (fn63)
We doubt Price Waterhouse imagined the real cost of seconding a British partner to the New York office!
B. Valois of America v. Risdon Corporation (fn64)
Plaintiff Valois of America filed a declaratory action against defendant Risdon Corporation concerning a patent. The defendant filed a counterclaim. When the parties began conducting discovery, the defendant moved for a protective order, contending that discovery should be conducted under the Hague Evidence Convention rather than the Federal Rules of Civil Procedure. Both the United States and France are parties to the Hague Evidence Convention. France has enacted an evidence-blocking statute intended to block United States style discovery.
The United States District Court for the District of Connecticut applied a three-prong test: (1) the examination of the particular facts of the case, particularly regarding the nature of the discovery requested; (2) the sovereign interest at issue; and (3) the likelihood the Hague Evidence Convention will be effective. The court mentioned that the defendant's discovery requests were more voluminous than those of the plaintiff, which suggested the court would be hard-pressed to declare the plaintiff's discovery requests burdensome. Furthermore, the defendant's assertion of a counterclaim demonstrated it was actively using the United States court system; having taken advantage of the forum by filing a counterclaim, defendant Risdon Corporation submitted to the burdens of the forum.
The court ultimately did not make a dispositive ruling. It simply admonished counsel to work it out, after giving a hint how it would rule if a dispositive ruling became necessary.
C. In Re Christopher Houck (fn65)
The City Court of Jonkoping, Sweden, sent a letter rogatory to the United States asking that Christopher Moore Houck be required to provide a blood sample to be used in a Swedish paternity suit. The United States filed an application for an order pursuant to 28 U.S.C. §1782.
Houck claimed a non-specific privilege allowed him to avoid giving a blood sample. Under Article 11 of the Hague Evidence Convention, (fn66) Houck could avoid giving the blood sample if he had a privilege against doing so under either United States law or Swedish law. The United States District Court for the District of Connecticut ruled Houck failed to demonstrate such a privilege either under United States law or Swedish law. Therefore, Houck had to give the blood sample.
D. United States v. Doyle (fn67)
Thomas Doyle and Robert Vance were convicted of illegal exportation of technological parts, conspiracy to commit the foregoing and filing false statements in export documents. For fifteen years, they say, everything they shipped from Bradley International Airport to Germany was labeled "auto spares." Some of the goods so shipped and labeled were oil production equipment and parts bound for Libya.
At the prosecution's request, the district court issued several international letters rogatory, one of which asked for public records from the government of Malta. The documents produced in response included some generated by private parties and recorded with the government. The defendants objected to these documents as hearsay. The court held that the prosecution had not provided a sufficient basis for admitting them as business records or public documents and declined "to forge a new, hybrid exception to the hearsay rule by combining these two distinct varieties of admissible hearsay simply to correct the Government's failing to offer a witness who could present the foundation necessary for the admission of the documents under the business records exception." (fn68) The case was being remanded for a new trial anyway, on the ground that the district court's charge to the jury regarding reasonable doubt and the presumption of innocence was erroneous. With the road map provided by the Second Circuit, the prosecutor should have little difficulty getting the Maltese records into evidence at the second trial.
We encounter more international law in Connecticut each year, both in the obvious places and in such diverse fields as foreclosure and child custody. It is heartening to see that at the same time our lawyers and courts are becoming more sophisticated in international matters.
________________
Footnotes
*. Of the Meriden Bair; Vice-Chair (External Affairs) of the Connecticut Bar Association's Section of International Law and World Peace.
**. Professor, Lally School of Management and Technology, Rensselaer Polytechnic Institute at Hartford; Vice President and General Counsel, HSBC Equator (USA) Incorporated, Glastonbury; Chair of the Connecticut Bar Association's Section of International Law and World Peace.
1. There were a few Connecticut cases with international law aspects that are not discussed further below. The Connecticut Supreme Court provided a detailed review of the doctrine of exhaustion of tribal remedies in Drumm v. Brown, 245 Conn. 657 (1998). The Workers' Compensation Act, CONN. GEN. STAT. §31-275 et seq., was held applicable to the slip-and-fall case of an illegal alien despite the Immigration Reform and Control Act of 1986, 8 U.S.C. §1324a, in Dowling v. Slotnik, 244 Conn. 781 (1998).
A Second Circuit case not involving Connecticut, but of interest to criminal lawyers, is Zecevic v. United States Parole Commission, 163 F.3d 731 (2d Cir. 1998). Zecevic was convicted of smuggling drugs into Sweden. He requested and obtained per-mission to be transferred to the United States to serve out the balance of his sentence pursuant to the Council of Europe's Convention on the Transfer of Sentenced Persons (the "Transfer Convention"), TLAS No. 10824. After his arrival in the United States, the Parole Commission held a hearing to determine his release date pursuant to 18 U.S.C. §4106A(b) (1) (A). The Transfer Convention requires the Parole Commission to determine the release date as if the prisoner had been convicted of a similar offense in the United States, so the Parole Commission applied the sentencing guidelines to Zecevic's case.
Zecevic had received a nine-year sentence in Sweden and the Swedish authorities calculated his earliest release date as May 22, 1998. The Parole Commission calculated his sentence at 94 months, or 14 months less than the Swedish sentence. However, he was not eligible for release in the United States until September 21, 2001, so he must spend more than three additional years in jail because he transferred to the United States.
2. Lowry & Schroth, Survey of 1997 Developments in International Law in Connecticut, 72 CONN. BJ 364, 365 (1998) (hereinafter Survey of 1997 Developments).
3. Addresses and contact details appear at http://www.state.ct.us/ecd/international/tradereps.html and http://www.state.ct.us/ecd/international/initiatives.htm.
4. At this writing, links to five such statutes are available at http://www.state.ct.us/ ecd/international/initiatives.htm. All of the links lead to the Connecticut General Assembly's web site, http//:www.cga.state.ct.us, which is a useful source of state legislation since 1993. May we assume the reader is aware of the numerous links to international legal materials on the web site of the Connecticut Bar Association's Section of International Law, http://135.145.16.6:80/sections/cbasc22.htm?
5. 15 U.S.C. §§78m, 78dd-1, 78dd-2, 78ff. A useful source is Symposium, The Foreign Corrupt Practices Act on Its Twentieth Anniversary: Its Application, Defense and International Aftermath, 18 Nw. J. INT'L L. & Bus. 263-547 (1998).
6. Signed March 29, 1996 at Caracas, entered into force 6 March 1997, 35 I.L.M. 724, www.state.gov/www/regions/wha/corrpt.html. Some key provisions of this convention:
Article V -jurisdiction
2. Each State Party may adopt such measures as may be necessary to establish its jurisdiction over the offenses it has established in accordance with this Convention when the offense is committed by one of its nationals or by a person who habitually resides in its territory.
3. Each State Party shall adopt such measures as may be necessary to establish its jurisdiction over the offenses it has established in accordance with this Convention when the alleged criminal is present in its territory...
Article VII - Transnational Bribery
Subject to its Constitution and the fundamental principles of its legal system, each State Party shall prohibit and punish the offering or granting, directly or indirectly, by its nationals, persons having their habitual residence in its territory, and businesses domiciled there, to a government official of another State, of any article of monetary value, or other benefit, such as a gift, favor, promise or advantage, in connection with any economic or commercial transaction in exchange for any act or omission in the performance of that official's public function . . . .
The reader will note the careful distinction between "shall" in article VII and "may" in article V, section 2.
7. Argentina, Bolivia, Chile, Colombia, Costa Rica, Ecuador, El Salvador, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Trinidad & Tobago, Uruguay, Venezuela.
8. The Bahamas, Brazil, Dominican Republic, Guatemala, Guyana, Haiti, Jamaica, Suriname, United States.
9. We don't know the exact basis of Senator Helms's objection to this convention, but we would expect at least a reservation regarding the following provision if the United States eventually ratifies:
Article IX - Illicit Enrichment
Subject to its Constitution and the fundamental principles of its legal system, each State Party that has not yet done so shall take the necessary measures to establish under its laws as an offense a significant increase in the assets of a government official that he cannot reasonably explain in relation to his lawful earnings during the performance of his functions.
We commented on the sometimes obsessive use of reservations by the United States in another context in Lowry & Schroth, Survey of 1992 Deve4ments in International Law in Connecticut, 67 CONN. BJ. 141, 144-150 (1993).
10. A/RES/51/191 (Feb. 21, 1997).
11. The key EU body here is called UCLAF (Unite de Coordination de la Lutte AntiFraude). The key documents are a Regulation dated July 26, 1995 on protection of the financial interests of the EU, the First Protocol, Sept. 27, 1996, on assimilation of national laws against corrupt practices harmful to the financial interests of the EU, and the Second Protocol, June 19, 1997, on laundering the proceeds of fraud affecting the financial interests of the EU. These require implementing legislation by the member states, much of which has been adopted already.
12. Criminal Law Convention on Corruption, signed Jan. 27, 1999 at Strasbourg, Europ. T.S. No. 173.
13. Signed Dec. 17, 1997 at Paris, entered into force Feb. 15, 1999, 37 I.L.M. 1, www.oecd.org/daf/nocorruption/20novle.htm. The following key provisions should be compared to those of the OAS convention quoted in note 6 supra..
Article I - The Offense of Bribery of Foreign Public Officials
1. Each Party shall take such measures as may be necessary to establish that it is a criminal offence under its law for any person intentionally to offer, promise or give any undue pecuniary or other advantage, whether directly or through intermediaries, to a foreign public official, for that official or for a third party, in order that the official act or refrain from acting in relation to the performance of official duties, in order to obtain or retain business or other improper advantage in the conduct of international business.
Article 4 -jurisdiction
2. Each Party which has jurisdiction to prosecute its nationals for offences committed abroad shall take such measures as may be necessary to establish its jurisdiction to do so in respect of the bribery of a foreign public official, according to the same principles.
4. Each Party shall review whether its current basis for jurisdiction is effective in the fight against the bribery of foreign public officials and, if it is not, shall take remedial steps.
14. The Canadian implementing legislation, Corruption of Foreign Public Officials Act, Dec. 10, 1998, effective Feb. 14, 1999, 1998 S.C. ch. 34, www.parl.gc.ca/36/l/parlbus/chambus/house/bills/government/S-21/S-21-4/S-21_cover-E.html, is interesting for its detailed concern with the distinction between (permissible) "grease" payments and unlawful bribery.
15. Germany's Penal Code (Strafgesetzbuch) has a new tide 26, "Straftaten gegen den Wettbewerb," as a result of the Gesetz zur Bekdmpfung der Korruption vom 13 August 1997, BGBI I, S. 2038. The OECD Convention is implemented by the Gesetz zur Bekampfung internationaler Bestechung - IntBestG vom 10 September 1998, BGBI 11, S. 2327. The EU's First Protocol is implemented by the EUBestechungsgesetz - EUBestG vom 10 September 1998, BGBI II, S. 2340. It is notable that the German legislation makes no visible exception for "grease" payments, although the official commentary (but not the text itself) of the OECD Convention makes the distinction with which we are familiar under the FCPA. German commentators have suggested that there may be no such exception under German law; if they are correct, then that law, formerly notoriously lax, is now unusually strict.
16. The United Kingdom ratified the OECD Convention without adopting (or even proposing) any implementing legislation. "Whilst the UK's existing anticorruption legislation is sufficient to meet the obligations arising from the [OECD] Convention, an independent review of that legislation is currently being undertaken by the Home Office." Brian Wilson, Minister for Trade, Dec. 11, 1998. "The scope of these provisions [of the OECD Convention] is fully compatible with existing UK law . ... The Convention does not require the territorial basis for the application of the UK anti-corruption statutes to be changed, but the effectiveness of the current basis for jurisdiction must be reviewed .... The domestic legislation which will enable the United Kingdom to implement the Convention is already in place, and does not require amendment." Department of Trade and Industry, Explanatory Memorandum submitted to Parliament with proposal for ratification.
We find this position astounding (and some readers may be aware that one of us is admitted as a solicitor in England and Wales). This is not the place for the details, but we consider that, under its existing legislation (principally the Public Bodies Corrupt Practices Act 1889, the Prevention of Corruption Act 1906 and the Prevention of Corruption Act 1916), the United Kingdom does not have the extraterritorial jurisdiction over bribery by its nationals that is required by the OECD Convention.
17. The other countries that have ratified as of this writing are Bulgaria, Finland, Greece, Hungary, Iceland, Mexico, Norway.
18. Argentina, Australia, Austria, Brazil, Chile, Czech Republic, Denmark, France, Ireland, Luxembourg, New Zealand, Poland, Portugal, Slovak Republic, Spain, Sweden, Switzerland, Turkey.
19. Pub.L. No. 105-366, 112 Star. 3302, Nov. 10, 1998, www.ita.doc.gov/legal/ leg.html.
20. Note 5 supra.
21. As we hope most readers are aware, the United States has far-reaching legislation against bribery of government (including Indian tribal government) officials, so that most such acts were federal crimes already. See especially 18 U.S.C. §666, which usually applies if the defendant acted as an agent of an organization (very broadly defined) or of a state, local, or Indian tribal government, or any agency thereof that "receives, in any one year period, benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance." See Salinas v. United States, 118 S.Ct. 469 (1997).
22. See generally Lord, The No-Guaranty Rule and the Standby Letter of Credit Controversy, 96 BANKING L.J. 46 (1979).
23. The leading Connecticut case upholding standby letters of credit is New York Life Insurance Co. v. Hartford National Bank & Trust Co., 173 Conn. 492, 378 A.2d 562 (1977).
24. New York's version of the "Uniform" Commercial Code specifies in §5-102(4) that, unless otherwise agreed, Article 5 does not apply to a letter of credit stated to be subject to the Uniform Customs and Practice. The corresponding CONN. GEN. STAT. §42a-5-103 does not include such a rule. In our view, the New York provision goes too far and would be more defensible if it provided for application of the Uniform Customs and Practice to the extent of any difference, because Article 5 covers several topics that are not, and in some instances cannot be, covered in the Uniform Customs and Practice.
25. 35 I.L.M. 735 (1996).
26. 165 F.3d 184 (2d Cir. 1999).
27. Another interesting arbitration case not visibly involving Connecticut is Europcar Italia v. Maiellano Tours, 156 F.3d 310 (2d Cir. 1998). Europcar contracted to provide car rental services to clients of Maiellano Tours. The contract contained an arbitration clause. A dispute arose over who was entitled to certain value-added tax refunds from the Italian government. The parties agreed to modify the arbitration clause after the dispute arose to provide for three arbitrators instead of a single arbitrator, perhaps making it to that extent a submission agreement. (An arbitration agreement, by definition, covers future disputes because it is executed before a dispute arises. A submission agreement covers only an existing dispute. The distinction is important because some legal systems will enforce submission agreements but not arbitration agreements.)
While an application to confirm and an application to vacate were pending in Italy, Europcar filed an application to confirm the award in the United States. Maiellano Tours opposed confirmation of the award under the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the "New York Convention"), 21 U.S.T. 2517, TIAS No. 6997, implemented by 9 U.S.C. §201 et seq., on the ground that the type of informal, equitable arbitration (arbitrato irrituale in equita) selected by the parties was not covered by the New York Convention. The Court of Appeals held, however, that the parties intended to be bound by the arbitrators' decision, as evidenced by their use of the words "final arbitration." All binding arbitration is within the scope of the New York Convention.
The Court of Appeals considered also whether the district court should have postponed the proceedings. It held that the following factors were relevant and should have been considered by the trial court, to which the case was remanded: (1) The general objectives of arbitration. (2) The status of the foreign proceedings and the estimated time for those proceedings to be resolved. (3) Whether the award sought to be enforced would be subject to greater scrutiny where it was issued. (4) Whether the foreign proceedings seek to enforce the award (which weighs in favor of a postponement). (5) Whether the foreign proceedings seek to vacate the award (which weighs against a postponement). (6) The balance of possible hardships to each of the parties. (7) Any other circumstances that weigh in favor or against a postponement.
28. International Chamber of Commerce, 38, Cours Albert ler, 75008 Paris, France; telephone 011 (33) (1) 49.53.28.28; fax: 011 (33) (1) 49.53.29.42.
29. For example, the Cour commune de justice et d'arbitrage in Abidjan, established pursuant to the OHADA Treaty (Traite relatif A I'Harmonisation du Droit des Affaires en Afrique, signed at Port-Louis Oct. 17, 1993, entered into force June 5, 1996), follows the ICC model and its arbitration rules are generally similar to those of the ICC.
30. Some of the differences between the ICC and American Arbitration Association rules can be significant. For instance, decisions can be made under the ICC rules by the Chair of the Arbitral Tribunal in the absence of a majority. The AAA rules do not allow the Chair such power.
31. These rules are reprinted as an addendum at the end of this article. They are available electronically at http://www.iccwbo.org/Commissions/Arbitration/ rulesenglish.htm.
32. For a detailed discussion, see W. LAURENCE CRAIG, et al., INTERNATIONAL CHAMBER OF COMMERCE ARBITRATION (3d ed. 1999 [in press]).
33. This concept was created in response to legal systems that did not recognize the enforceability of submission agreements (which are executed after a dispute has arisen).
34. London Court of International Arbitration, Fleet Arbitration Centre - Sixth Floor, Hulton House, 161-166 Fleet Street, London EC4A 2DY, England; telephone: 011 (44) (207) 936-3530; fax: 011 (44) (207) 936-3533.
35. These rules are reprinted as an addendum at the end of this article. They are available electronically at http://www.Icia-arbitration.com/town/square/xvc24/rulecost/rulecost.htm.
36. In Capital Currency Exchange v. National Westminster Bank PLC, 155 F.3d 603 (2d Cir. 1998), a case whose only obvious connection to Connecticut is Judge Eginton's presence on the panel by designation, the Second Circuit affirmed the district court's dismissal of a Sherman Act case on the sole ground of forum non conveniens, England (for which Articles 85 and 86 of the Treaty Establishing the European Economic Community are analogous to §§1 and 2 of the Sherman Act) having being found a more suitable forum. The case is interesting because of the interplay between the special venue provision in §12 of the Clayton Act, which liberalized the venue provisions of the Sherman Act, thereby narrowing the doctrine of forum non conveniens, 15 U.S.C. §§5, 7, 22, and the subsequent 28 U.S.C. §1404(a), which broadened the doctrine again. See United States v. National City Lines Inc., 334 U.S. 573, 596 (1948) (before §1404(a)), and United States v. National City Lines Inc., 337 U.S. 78, 84 (1949) (after §1404(a)). The Second's Circuit's ruling follows its earlier decisions in Transunion Corp. v. Pepsico, Inc., 811 F.2d 127, 130 (2d Cir. 1987) (RICO), and Cruz v. Maritime Co., 702 F.2d 47, 48 (2d. Cir. 1983) (Jones Act), but is in direct conflict with the holdings of the Fifth Circuit in Kempe v. Ocean Drilling & Exploration Co., 876 F2d 1138, 1144 (5th Cir. 1989), and Industrial Inv. Dev. Corp. v. Mitsui & Co., Ltd., 671 F.2d 876, 890 (5th Cir. 1982).
37. 1997 Conn. Super LEXIS 1443 (1997). See Wolgast, A Hong Kong Controversy, Conn. L. Trib., June 2, 1997.
38. Survey of 1997 Developments, note 2 supra, at 372.
39. The approach set forth in Rosinka Joint Venture v. Williams, 10 Conn.L.Rptr. 63 (Super. Ct. 1993), is similar to that of most courts in the United States. See Lowry & Schroth, Survey of 1993 Developments in International Law in Connecticut, 68 CONN.B.J. 222, 229-231 (1994).
40. 1998 Conn. Super. LEXIS 3401 (Dec. 3, 1998).
41. 51 Fed. Reg. 58 (March 26, 1986); reprinted in the MARTINDALE-HUBBELL LAW DIRECTORY. Implementing legislation is codified at 42 U.S.C. §11601. The text of the convention can be found at http://www.hcch.net/e/conventions/text28e.html. The latest list of state parties and the dates they became parties to the convention can be found at http://www.hcch.net/c/status/stat28e.html. The convention is effective for abductions occurring after the following dates in the following countries:
Argentina - 1 June 1991 Falkland Islands - 1 June 1998 Monaco - 1 June 1993
Australia - 1 July 1988 Finland - 1 August 1994 Netherlands 1 September 1990
Austria - 1 October 1988 France - 1 July 1988 New Zealand - 1 October 1991
Bahamas - 1 January 1994 Germany - 1 December 1990 Norway - 1 April 1989
Belize - 1 November 1989 Greece - 1 June 1993 Panama - 1 June 1994
Bosnia & Herzegovina - 1 Honduras - 1 June 1994 Poland - 1 November 1992
December 1991 Hong Kong - 1 September 1997 Portugal - 1 July 1988
Burkina Faso - 1
November Hungary - 1 July 1988 Romania - 1 June 1993
1992
Iceland - 1 December 1996 Slovenia - 1 April 1995
Canada - 1 July 1988 Ireland - 1 October 1991 South Africa - 1 November 1997
Cayman Islands - 1 August 1998 Israel - 1 December 1991 Spain - 1 July 1988
Chile - 1 July 1994 Italy - 1 May 1995 St. Kitts and Nevis - 1 June
Colombia - 1 June 1996 Luxembourg - 1 July 1988 1995
Croatia - 1 December 1991 Former Yugoslav Republic of Sweden - 1 June 1989
Czech Republic - 1 March 1998 Macedonia - 1 December 1991 Switzerland - 1 July 1988
Cyprus - 1 March 1995 Mauritius - 1 October 1993 United Kingdom - I July 1988
Denmark - 1 July 1991 Mexico - 1 October 1991 Venezuela - 1 January 1997
Ecuador - 1 April 1992 Zimbabwe - 1 August 1995
42. Lowry & Schroth, Survey of 1991 Developments in International Law in Connecticut, 66 CONN. B.J. 64, 78-80 (1992); Lowry & Schroth, Survey of 1995 Deve4ments in International Law in Connecticut, 70 CONN. BJ 68, 75-76 (1996).
43. The removal or the retention of a child is to be considered wrongful where-
a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.
44. Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that -
a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained j an age and degree of maturity at which it is appropriate to take account of its views. In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence.
45. 1998 Conn. Super. LEXIS 961 (Feb. 10, 1998).
46. Canada was the country that proposed this topic to the Hague Conference on Private International Law in the first place.
47. There was a court-appointed special master in this case. We wonder whether anyone contacted the State Department to see whether its consulate would be willing to hold Mrs. Tate's Brazilian passport in accordance with the court's order. One of us did speak with the Legal Adviser's office and was told that a U.S. consulate would not do this. In any event, holding the passport might not be enough to make it impossible for a resourceful person to travel internationally.
48. Title 11 of Pub.L. No. 105-323.
49. 64 Fed.Reg. 3735 Jan. 25, 1999).
50. 1998 Conn. Super. LEXIS 1834 June 29, 1998).
51. Great Britain consists of England, Wales and Scotland. The United Kingdom includes these and Northern Ireland. The opinion did not specify where in Great Britain Mr. Bunzl resided.
52. Nov. 15, 1965, 658 U.N.T.S., 20 U.S.T. 361, TIAS 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. See Survey of 1991 Developments, note 42 supra, at 65-68. The text of the Hague Service Convention can be found in electronic form at http://www.hcch.net/e/conventions/textl4e.html.
53. 1998 U.S. Dist. LEXIS 18640 (D. Conn. March 30, 1998).
54. Provided the State of destination does not object, the present Convention shall not interfere with the freedom to send judicial documents, by postal channels, directly to persons abroad, b) the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination, c) the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination.
We have discussed this issue several times in previous surveys, notably Lowry & Schroth, Survey of 1994 Developments in International Law in Connecticut, 69 CONN. BJ 143, 147-149, 151-153 (1995), and Survey of 1995 Developments, note 42 supra, at 76-81.
55. In SFP Tisca v. Robin Hill Farm, Inc., 244 Conn. 721 (1998), the Connecticut Supreme Court decided an evidence point with international implications, though not one involving the Hague Evidence Convention. The plaintiff, a French company, had only one employee who could testify in English and that employee was to be in Europe on business at the time of the trial. The plaintiff tried to obtain a trial date on which he would be in the United States. When that failed, his deposition testimony was offered. In the absence of any showing of bad faith, and noting that the defendant had cross-examined this employee extensively during the deposition, the Court held that the circumstances did not amount to procuring the employee's absence for the purpose of making his deposition admissible under what is now PRACTICE BOOK §13-31(a)(4)(B).
56. 154 F.3d 16 (2d Cir. 1998).
57. Some details and further citations appear in Recent Decision, First American Corp. v. Al-Nahyan, et al, 12 NY INT'L L.Rev.., No. 1, 127 (1999).
58. First American Corp. v. Nahyan, [1998] 4 All ER 439 (C.A.). See Recent Decision, First American Corp. v. Al-Nahyan, 12 NY INT'L L.REV., No. 2, 111 (1999).
59. 23 U.S.T. 2555, TLAS No. 744, codified at 28 U.S.C. §1781.
60. 482 U.S. 522, 539-540 (1987).
61. See, e.g., Lowry & Schroth, Survey of 1994 Developments in International Law in Connecticut, 69 CONN. BJ 143, 149-153 (1995).
62. 154 F.3d at 22.
63. 154 F.3d at 23.
64. 1997 U.S. Dist. LEXIS 23135 (D. Conn. July 23, 1997). This case was only recently released on Lexis.
65. 1997 U.S. Dist. LEXIS 23137 (D. Conn. Oct. 10, 1997). This case was only recently released on Lexis.
66. In the execution of a Letter of Request the person concerned may refuse to give evidence in so far as he has a privilege or duty to refuse to give the evidence-
a) under the law of the State of execution; or
b) under the law of the State of origin, and the privilege or duty has been specified in the Letter, or, at the instance of the requested authority, has been otherwise confirmed to that authority by the requesting authority. A Contracting State may declare that, in addition, it will respect privileges and duties existing under the law of States other than the State of origin and the State of execution, to the extent specified in that declaration.
67. 130 F.3d 523 (1997).
68. 130 F.3d at 523, 547.