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)
1. LEGISLATION
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).
III. CASES
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.
IV CONCLUSION
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.
______________
Footnotes
*. 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.