By HOUSTON PUTNAM LOWRY (fn*) AND PETER W. SCHROTH (fn**)
Two significant statutes relating to international law were enacted in
Connecticut during 1990, and at least one notable judicial decision relating to
international law was handed down by a Connecticut Superior Court(fn1) This
article includes a brief report on the congressional legislation implementing
the Inter-American Arbitration Convention because the Connecticut Bar
Association's Section of International Law and World Peace played a leading role
in securing the enactment of that statute. In addition, because this is the
first time the CONNECTICUT BAR JOURNAL has included international law in its
annual survey issues, we begin with a brief recitation of some significant
Connecticut developments in international law that are recent, but prior to
1990.
In January, 1991, the judiciary Committee of the General Assembly began
consideration of an (as yet unnumbered) omnibus bill entitled "An Act Concerning
International Obligations and Procedure," which, if passed, will affect many
areas of the law and provide the basis for a much longer article in next year's
survey.
I. LATE 1980's DEVELOPMENTS
State law is a minor, but nevertheless important, part of international law, and
Connecticut is more advanced than most states in adopting modem statutes in this
area. Probably the most important Connecticut statutes on international law from
the period 1987 to 1989 are:
A. The Uniform International Wills Act(fn2)
The Uniform International Wills Act provides an alternative set of standards for
formal validity of wills, so that a will satisfying either the requirements for
an international will or the requirements of other Connecticut laws relating to
formal validity (or both, which is advisable and not difficult) will be
recognized in Connecticut. Although only a handful of other U.S. states
recognizes international wills (unless, of course, their conflict of laws rules
point to a jurisdiction whose statutes provide for the validity of international
wills), as of January, 1991, the Convention Providing a Uniform Law on the Form
of an International Will (fn3) is in force in eight countries.(fn4)
B. The Uniform Foreign-Money Judgments Recognition Act(fn5) and the Uniform
Foreign-Money Claims Act(fn6)
As of January, 1991, the Uniform Foreign-Money Judgments Recognition Act has
been adopted in eighteen states and the Uniform Foreign-Money Claims Act in five
states. The former Act requires that judgments of foreign courts be given
treatment equivalent to the constitutional full faith and credit given to
judgments of the courts of other U.S. states, without any requirement of
reciprocity, but subject to certain statutory conditions relating to finality,
due process, jurisdiction and, in the Connecticut courts' discretion, adequate
notice, lack of fraud, consistency with public policy, etc.(fn7) The latter Act
authorizes judgments and arbitration awards in currencies other than United
States dollars and sets forth procedures for dealing with currency translation.
These statutes are discussed further in Part IV infra.
C. The UNCITRAL(fn8) Model Law on International Commercial Arbitration(fn9)
The UNCITRAL Model Law, the result of an international conference in 1985, has
had a major influence in modernizing and harmonizing the law relating to
international commercial arbitration throughout the world. As of January, 1991,
it was in force throughout Canada (both as federal law and as provincial law),
in at least one country on each continent except South America, and in the
states of Connecticut, California, Florida, Georgia and Texas.
II. INTERNATIONAL CHILD SUPPORT RESOLUTION
During its February, 1990, session, the General Assembly adopted House Joint
Resolution No. 3, a strongly worded resolution addressing the problem of
obtaining child and spousal support when the parties are in different countries.
For example, a parent living in France may not be paying the court-ordered child
support for a child living in Connecticut. This is an increasing problem as the
population becomes more mobile and divorce more common.
The resolution urges the United States to become a party to the 1956 United
Nations ECOSOC(fn10) Convention on the Recovery Abroad of Maintenance
Orders(fn11) and the 1973 Hague Convention on the Recognition and Enforcement of
Maintenance Obligations.(fn12) The resolution was supported before the General
Assembly by Connecticut's Attorney General and the Connecticut Bar Association's
Section of International Law and World Peace.
The Hawaiian Legislature adopted an identical resolution based on House Joint
Resolution No. 3,(fn13) and the Oregon Bar Association adopted a similar
resolution in 1990.(fn14) The Connecticut resolution was discussed favorably in
the September, 1990, issue of State Legislatures magazine, published by the
National' Conference of State Legislatures.(fn15) Connecticut Representative
Barbara B. Kennelly introduced a similar resolution in the 101st Congress;(fn16)
her resolution was co-sponsored by fifty other members of the House of
Representatives, although it was not acted upon before Congress adjourned.
An interesting aspect of the Connecticut resolution is its request that Congress
allow Connecticut to become a party to these conventions directly if the United
States does not become a party for the entire country. This is a request for
congressional consent under the International Compact Clause of the United
States Constitution,(fn17) which apparently has never before been used.
III. DETERMINATION OF FOREIGN LAW
The Connecticut General Assembly enacted Substitute House Bill 5664 as Public
Act 90-19, "An Act Concerning the Determination of Foreign Law and Judicial
Notice of Certain Acts, Regulations and Ordinances."(fn18) This law addresses
two topics: determination of foreign law and judicial notice of Connecticut law.
This law modernizes Connecticut's jurisprudence concerning proof of foreign law,
including both the laws of another state and those of another country. While
Connecticut's laws on this topic were considered a model for the country in the
1930's, they failed to keep pace with the judicial trend allowing greater
latitude in proving foreign law. This portion of the Act(fn19) was modelled
after Federal Rule of Civil Procedure 44.1 and some model laws prepared by the
National Conference of Commissioners on Uniform State Laws.(fn20)
The presumption that printed books and pamphlets purporting to be the statutes
of other states of the United States are proof of that law is abolished.(fn21)
The court may use whatever relevant material it chooses, whether or not it is
submitted by a party, and whether or not that material is admissible under the
rules of evidence.(fn22) This rule makes sense as more and more legal materials
are published and become generally available. The new statute makes it clear
that determination of foreign law is a question of law for the court and not a
question of fact for the jury.(fn23)
This Act also modernizes Connecticut's laws concerning legislative acts of
Connecticut and its political subdivisions. General and special acts of the
state now are to be judicially noticed; in addition, courts are to take judicial
notice of any state regulations without the requirement that they be
authenticated by the issuing agency.(fn24) The prior authentication requirement
makes no sense now that regulations are collected and published by the Secretary
of the State.
This Act reverses previous Connecticut law, which held that regulations and
orders of local boards and agencies would not be judicially noticed. The fine
line between a municipal ordinance and a municipal regulation is abolished,
requiring the court to take judicial notice of both;(fn25) this, too, follows
the modern trend.
IV. FISKE, EMERY & ASSOC. V. AJELLO(fn26)
Plaintiff Fiske, Emery & Associates, a Montreal law firm, was retained by
defendants William R. Ajello and Beverly Scala to perform legal services in
Quebec. The parties agreed to submit the plaintiff's account for professional
services to arbitration by the arbitration committee of the Quebec Bar, which
decided that the defendants were liable to the plaintiff for Can. $18,544.03.
The plaintiff applied for and was granted homologation [confirmation] of the
arbitration decision by the Quebec Superior Court, but the defendants still
refused to pay the judgment or the arbitration award. The plaintiff then sued in
Connecticut to enforce the arbitral award and the judgment.
The Connecticut Superior Court relied heavily upon the newly enacted Uniform
Foreign-Money judgment Recognition Act.(fn27) It held that the judgment of the
Quebec Province Superior Court was the judgment of a foreign state under
§52-611(l), and within the Act because it granted the recovery of a sum of
money.(fn28) The court found that the plaintiff was entitled to recognition and
enforcement of the foreign judgment, unless the defendants could show that
recognition, should not be granted under §52-614,(fn29) and went on to analyze
that section's requirements.
Section 52-614(a)(1) provides that a foreign judgment is not conclusive unless
it is rendered under a system that provides procedures compatible with the
requirements of due process of law. The court held that it was clear the
arbitration committee of the Quebec Bar and the Quebec Superior Court met those
requirements, even though their procedures may be different from Connecticut
procedures.
More importantly, the defendants claimed that they did not receive proper notice
of the proceedings. Their failure to receive notice would require that the court
deny enforcement of the award under §52-614(b) (1). With an exhaustive factual
analysis, the court determined the defendants' counsel knew of the date of the
bearing even though the defendants themselves may not have known. The court held
that parties are bound by their attorney's actions as long as those actions are
within his general authority to represent the client.
The Quebec Bar's arbitration procedure required the defendants to deposit
security to pay the amount of any arbitration award. The defendants never
deposited the required security, but the plaintiff waived the security
requirement unilaterally. The court sided with the plaintiff in determining that
the plaintiff's waiver of the security did not amount to a denial of due process
or fraud under §52-614.
The court determined that the plaintiff was entitled to recover Can. $18,544.03.
Without mentioning the Uniform Foreign-Money Claims Act,(fn30) which became
effective three months before this decision, on October 1, 1989, the court
ordered a hearing on damages to determine the amount
of money owed in United States dollars and the amount of interest that should be
awarded. Under the Uniform Foreign-Money Claims Act, judgment should be entered
in the foreign currency, in this case Canadian dollars, and the conversion into
United States dollars should be calculated as of the date of payment.(fn31)
V. IMPLEMENTING LEGISLATION FOR THE INTER-AMERICAN ARBITRATION CONVENTION
The United States became a party in 1990 to the 1975 Inter-American Convention
on International Commercial Arbitration (the "Inter-American
Convention")(fn32) after the necessary implementing legislation was enacted by
the 101st Congress.(33)
The Inter-American Convention is sponsored by the Organization of American
States (the "OAS") and requires countries to enforce agreements to arbitrate and
arbitration awards, as does the more widely adopted New York Convention on the
Recognition and Enforcement of Foreign Arbitral Awards (the "New York
Convention").(fn34) Many Latin American countries have not become parties to the
New York Convention because of their jurisprudential distrust of arbitration.
The Inter-American Convention was drafted as a regional solution to concerns
about the enforcement of agreements to arbitrate and arbitration awards.(fn35)
President Reagan transmitted the Inter-American Convention to the Senate in
1981. The Senate gave its advice and consent to ratification in 1986,(fn36) but
required implementing legislation to be adopted as a pre-condition for
depositing the instrument of ratification with the OAS. Although the
implementing legislation was introduced in the Congress during the 99th and
100th sessions, and passed the Senate both times, the House of Representatives
never acted on the bills. The implementing legislation was introduced again in
the 101st Congress as H.R. 4314.(fn37)
The House Subcommittee on Immigration, Refugees and International Law of the
101st Congress, chaired by Connecticut Representative Bruce A. Morrison, held
hearings on the necessary implementing legislation on May 1, 1990,(fn38) and the
Subcommittee recommended its passage to the House judiciary Committee on the
same day. H.R. 4314 was passed by the House on June 5,1990, and by the Senate on
August 4, 1990. It was signed into law by President Bush on August 15,
1990,(fn39) and the United States deposited its instrument of ratification with
the OAS on September 27, 1990, effective October 27, 1990.
The implementing legislation for the Inter-American Convention is virtually
identical to that for the New York Convention;(fn40) most of the changes simply
substitute the name of the Inter-American Convention for the New York
Convention. Section 302, dealing with the Inter-American Convention,
specifically incorporates existing Sections 202, 203, 204, 205 and 207, which
deal with the New York Convention. This means that all the case law interpreting
these sections in connection with the New York Convention applies to
interpretation of the Inter-American Convention's implementing legislation.
One change appears in new Section 303(b), which provides that the court must
require arbitration to be held in accordance with the agreement even if the
parties fail to specify the place of arbitration.(fn41) Twenty years of
experience since the enabling legislation for the New York Convention was
enacted show this provision to be necessary because the parties sometimes fail
to specify where the arbitration is to be held, a relatively minor omission that
should not be considered such a major defect as to render invalid the agreement
to arbitrate.
New Section 303(b) also provides that the arbitrators may be appointed in
accordance with Article 3 of the Inter-American Convention, if the agreement
fails to specify how all the arbitrators will be appointed. While the parties
usually provide a method for appointing arbitrators, the agreement to arbitrate
should be enforceable even if they do not. In this case, the "fall back" rules
of procedure are specified by the Inter-American Commercial Arbitration
Commission ("Inter-American Commission"). New Section 306 makes it clear that
the applicable rules are those promulgated by the Inter-American Commission on
July 1, 1988,(fn42) which are virtually identical to the very highly regarded
UNCITRAL arbitration rules.(fn43)
Unlike the implementing legislation for the New York Convention, new Section 304
requires reciprocity by limiting the application of the Inter-American
Convention to cases where the arbitral award is made in a territory of a
contracting state.
New Section 305 makes it clear that the regional solution, namely the
Inter-American Convention, is to prevail over the New York Convention if a
majority of the parties to the arbitration are citizens of a state or states
that are parties to the Inter-American Convention and are member states of the
OAS. The latter condition was imposed by the Senate in 1986, but for no obvious
reason: all present and likely parties to the Inter-American Convention are also
members of the OAS.
____________________
Footnotes:
*. Of the Farmington Bar; former Chair, Section of International Law and World
Peace, Connecticut Bar Association.
**. Vice President and Deputy General Counsel, Equator Holdings Limited,
Hartford.
1. The decision is dated December 28, 1989, but the authors consider that close
enough.
2. 1987 Conn. Acts 87-W, codified as CONN. GEN. STAT. §§45-194a - 45-194i. See
Stadler & Bagger, Connecticut Probate Law 1987, 62 CONN. B. J. 185, 189-90
(1988).
3. 12 I.L.M. 1302 (Nov. 1973), opened for signature Oct. 26,1973.
4. But not the United States, which signed it in 1973 but has never ratified it.
However, the President is pressing for the Senate's advice and consent during
1991.
5. 1988 Conn. Acts 88-39, codified as CONN .GEN. STAT. §§52-600 - 52-618. See
generally Ebke & Parker, Foreign Country Money-judgments and Arbitral Awards and
the Restatement (Third) of the Foreign Relations Law of the United States: A
Conventional Approach, 24 Int'l Law. 21 (1990)
6. 1989 Conn. Acts 89-134, codified as CONN. GEN. STAT. §§50a-50 - 50a-65.
7. See note 29 infra.
8. United Nations Commission on International Trade Law.
9. 1989 Conn. Acts 89-179, codified as CONN. GEN. STAT. §§50a-100 - 50a-136. See
Hoellering, The UNCITRAL Model Law on International Commercial Arbitration, 20
INT'L Law. 327 (1986); see generally Lecuyer-Thieffry & Thieffry, Negotiating
Settlement of Disputes Provisions in International Business Contracts: Recent
Developments in Arbitration and Other Processes, 45 Bus. Law. 577 (1990).
10. "ECOSOC" stands for "Economic and Social Council." See Chapter X of the
Charter of the United Nations.
11. 268 U.N.T.S. 92 (1956). This convention is patterned after the Uniform
Reciprocal Enforcement of Support Act, CONN. GEN. STAT. §§46b-180 - 46b-211.
12. 11 I.L.M. 1286 (1972).
13. Hawaii House Conc. Res. No. 172.
14. Oregon Bar Res. No. 14 (19W).
15. "Connecticut Aims for International Enforcement, printed on page 33 with
Arant, Cracking Down on Delinquent Dads, STATE LEGISLATURES, Sept 1990, at 32.
16. H.R. RES. 467, 101st Cong., 2d Sess.
17. U. S. CONST. art.I, § 10, cl. 3: "No State shall without the Consent of
Congress enter into any Agreement or Compact ... with a foreign Power. . .
18. This Act results in new §§ 52-163a, 52,163 and 52-168 of the General
Statutes; §§ 5132 and 52-162 are repealed.
19. §1 of the Act, codified as CONN. GEN. STAT. §52-163a.
20. E.g., the UNIFORM INTERSTATE AND INTERNATIONAL PROCEDURE Act (1962).
21. Former CONN. GEN. STAT. §52-163.
22. CONN. GEN. STAT. §52-163a(a) (1990).
23. CONN. GEN. STAT. §52-163a(b)(1990).
24. CONN. GEN. STAT: §52-163 (as amended).
25. CONN. GEN. STAT. §52-166 (as amended).
26. 5 C.S.C.R. 72 (1989).
27. Note 5 supra.
28. CONN. GEN. STAT. §52-611(2)(1990).
29. CONN. GEN. STAT. §52,614 provides:
(a) A foreign judgment is not conclusive if:
(1) The judgment was rendered under a stem which does not provide impartial tribunals or procedures compatible wig the requirements of due process of law;
(2) The foreign court did not have personal jurisdiction over the judgment debtor; or
(3) The foreign court did not have jurisdiction over the subject matter.
(b) A foreign judgment need not be recognized if:
(1) The judgment debtor in the proceedings in the foreign court did not receive of the proceedings in sufficient time to enable him to defend;
(2) The judgment was obtained by fraud;
(3) The cause of action on which the judgment is based is repugnant to the public policy of this state;
(4) The judgment conflicts with another final and conclusive judgment;
(5) The proceeding in the foreign court was contrary to an agreement between the parties under which the dispute in question was to be settled otherwise than by proceedings in that court; or
(6) In the case of jurisdiction based only on personal service, the foreign court was a seriously inconvenient forum for the trial of the action.
30. Note 6 supra.
31. Rather than the date of the loss, the date of the arbitration award, the
date of confirmation by the Quebec court, the date of confirmation by the
Connecticut court or the date of the hearing on damages.
32. 14 I.L.M. 336 (1975). A more detailed analysis of the convention and its
implementing legislation appears in Lowry, The United States joins the
Inter-American Arbitration Convention, 7 J. INT'l ARB. 83 (1990).
33. 9 U.S.C. §§ 301-307 ( ).
34. 21 U.S.T. 2517, T.I.A.S. No. 6997, opened for signature June 10, 1958,
entered into force June 7, 1959; effective for the United States December 29,
1970, subject to declarations, P.L. 91-368 84 Stat. 692,9 U.S.C. §§ 201-208. The
New York Convention was the result of the United Nations Conference on
International Commercial Arbitration, which was held in New York City in 1958.
See generally Martinez, Recognition and Enforcement of International Arbitral
Awards Under the United Nations Convention of 1958: The "Refusal Provisions, 24
INA LAW. 487 (1990).
35. The following countries are parties to the Inter-American Convention:
Country Signature Ratification
Bolivia 2 Aug. 1983
Brazil 30 Jan. 1975
Chile 30 Jan. 1975 17 May 1976*
Colombia 30 Jan. 1975 29 Dec. 1986*
Costa Rica 30 Jan. 1975 20 Jan. 1978*
Dominican Republic 18 Apr. 1977
Ecuador 30 Jan. 1975
El Salvador 30 Jan. 1975 11 Aug. 1980
Guatemala 30 Jan. 1975 20 Aug. 1986*
Honduras 30 Jan. 1975 22 Mar. 1979
Mexico 27 Oct. 1977 27 Mar. 1978*
Nicaragua 30 Jan. 1975
Panama 30 Jan. 1975 17 Dec. 1975*
Paraguay 26 Aug. 1975 15 Dec. 1976
Peru 21 Apr. 1988 22 May 1989*
United States 9 Jun. 1978 25 Apr. 1977*
Uruguay 30 Jan. 1975
Venezuela 30 Jan. 1975 16 May 1985
*also party to New York Convention
36. Senate Executive Report 99-24.
37. A Bill to Implement the Obligations of the United States under the
Inter-American Convention on International Commercial Arbitration, introduced on
March 20, 1990, by Representative Jack Brooks of Texas at the request of the
Bush administration. An identical bill was introduced by Senator Claiborne Pell
on November 20, 1989 as S. 1941.
38. Harold S. Burman of the State Department Legal Advisor's office, Garylee Cox
of the American Arbitration Association and Houston Putnam Lowry of the
Connecticut Bar Associations Section of International Law and World Peace
testified in favor of the bill.
39. P.L. 101-369, codified at 9 U.S.C. §301-307.
40. 9 U.S.C. § 201-208 ( ).
41. The Inter-American Commission recommends the following clause for the
arbitration of future disputes:
Any dispute, controversy or claim arising out of or relating to this contract,
or the breach, termination or invalidity thereto, shall be settled by
arbitration in accordance with the rules of procedure of the Inter-American
Commercial Arbitration Commission in effect on the date of this agreement. [The
arbitral tribunal shall decide as amiable compositeur or ex aequo et bono.]
An arbitration clause that stops here, however, may well lead to difficulties,
some of which are mentioned in the text. The Inter-American Commission and most
commentators) suggests that the parties consider adding additional clause as:
"The number of arbitrators shall be [1 or 3]"
"The place of arbitration shall be [location]"
"The language(s) to be used in the arbital proceedings shall be [one or more
languages]."
It should be noted also that arbitral tribunals in the United States may lack
the power to render awards as amiable compositeur or ex aequo et bono without
specific enabling legislation (such as 1989 Conn. Acts 89-179, § 28(3), codified
as CONN. GEN. STAT. §50a128(3) (1990)).
42. These rules are available from the Inter-American Arbitration Commission,
OAS Secretariat Building, 1889 F Street, N.W., Suite 400-1), Washington, D.C.
20006.
43. The UNCITRAL rules are widely available; for example, the American
Arbitration Association (which has an office at 2 Hartford Square West,
Hartford, CT 06106) has published them in a free pamphlet.