Survey of 1999 Developments in International Law in Connecticut
74 Connecticut Bar Journal 406 (2000)

      The Department of State issued these regulations(fn1) to implement the Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment,(fn2) although in fact they record the procedures already followed by the Department. The regulations prohibit the extradition of any person who is "more likely than not" to be tortured in the country requesting extradition. If a fugitive has been found by a judicial officer to be extraditable but the issue of possible torture has been raised, the Department's policy and legal offices review the case and present it to the Secretary of State, who may grant or deny extradition. If extradition is granted, it may be subject to conditions.(fn3) Section 2242(d) of the Foreign Affairs Reform and Restructuring Act of 1998 provides that neither the implementing regulations nor the Secretary's decisions thereunder are subject to judicial review.(fn4)

      Several international institutions that administer or otherwise affect international arbitrations changed some of their rules in 1999.

      The Stockholm Chamber of Commerce has long been a favorite venue for resolution of disputes involving Russia and, before that, the Union of Soviet Socialist Republics. The Arbitration Institute of the Stockholm Chamber of Commerce administers most of the arbitrations.(fn5) The Arbitration Institute established new arbitration rules, effective April 1, 1999,(fn6) substantially re-writing the 1988 rules. It also adopted expedited arbitration rules for minor disputes(fn7) and mediation rules,(fn8) both effective the same date. One of the unusual provisions of the latter is allowing a mediator to become an arbitrator for the purpose of entering an award based upon the mediated settlement.(fn9) This greatly facilitates enforcement of the mediated agreement.

      Effective October 1, 1999, the London Court of International Arbitration ("LCIA")(fn10) announced rules formediation.(fn11)

      The International Bar Association ("IBA")(fn12) adopted its Supplementary Rules Governing the Presentation and Reception of Evidence in International Commercial Evidence in 1983. After sixteen years of use, the IBA decided it was time to redraft the rules. The result is the more simply named Rules on the Taking of Evidence in International Commercial Arbitration,(fn13) which became effective June 1, 1999. While the rules have grown in length, they maintain their original function of enabling international arbitrations to be conducted in an efficient and economical matter. These are mainly rules of procedure, not rules on the details of what is admissible; the closest the rules approach the latter is Article 9, Rule 2, which provides:

The Arbitral Tribunal shall, at the request of a Party or on its own motion, exclude from evidence or production any document, statement, oral testimony or inspection for any of the following reasons:

      (a) lack of sufficient relevance or materiality;

(b) legal impediment or privilege under the legal or ethical rules determined by the Arbitral Tribunal to be applicable;

      (c) unreasonable burden to produce the requested evidence;

(d) loss or destruction of the document that has been reasonably shown to have occurred;

(e) grounds of commercial or technical confidentiality that the Arbitral Tribunal determines to be compelling;

(f) grounds of special political or institutional sensitivity (including evidence that has been classified as secret by a government or a public international institution) that the Arbitral Tribunal determines to be compelling; or

(g) considerations of fairness or equality of the Parties that the Arbitral Tribunal determines to be compelling.

      The IBA Rules on the Taking of Evidence include some interesting ideas that may be unfamiliar to United States lawyers, such as Article 3, Rule 7, which provides:

In exceptional circumstances, if the propriety of an objection can only be determined by review of the document, the Arbitral Tribunal may determine that it should not review the document. In that event, the Arbitral Tribunal may, after consultation with the Parties, appoint an independent and impartial expert, bound to confidentiality, to review any such document and to report on the objection. To the extent that the Arbitral Tribunal upholds the objection, the expert shall not disclose to the Arbitral Tribunal and to the other Parties the contents of the document reviewed.

      By a Federal Register notice dated October 4, 1999,(fn14) the State Department requested comment on certain updated arbitration rules from the Inter-American Commercial Arbitration Commission ("ICAC").(fn15) These rules are important because they apply under the 1975 Panama Arbitration Convention(fn16) if the parties have not selected any other rules for their arbitration. Pursuant to 5 U.S.C. §306(b), the United States is not bound by any changes in the ICAC rules until the Secretary of State approves them.

      The International Chamber of Commerce published the original Incoterms in 1936. In September 1999, it published the sixth version, Incoterms 2000(fn17). There are now 13 Incoterms:

Group E EXW Ex Works (... named place)

Departure

Group F FCA Free Carrier (... named place)

Main carriage FAS Free Alongside Ship (... named port of

unpaid shipment)

FOB Free On Board (... named port of

shipment)

Group C CFR Cost and Freight (... named port of

destination)

Main carriage CIF Cost, Insurance and Freight (... named

port of paid destination)

CPT Carriage Paid To (... named place of

destination)

CIP Carriage and Insurance Paid To (... named

place of destination)

Group D DAF Delivered At Frontier (... named place)

Arrival DES Delivered Ex Ship (... named port of

destination)

DEQ Delivered Ex Quay (... named port of

destination)

DDU Delivered Duty Unpaid (... named place of

destination)

DDP Delivered Duty Paid (... named place of

destination)

      The ICC recommends that forms be revised to specify "Incoterms 2000," and this can be important. The most significant changes from the 1990 edition probably are the shift, from buyer to seller, of the obligation to obtain export clearance under FAS and the shift, from seller to buyer, of the obligation to obtain import clearance under DEQ.However, there are many small changes and clarifications, so careful reference to the new text is strongly advised.

      This year, we report on decisions about service of process, jurisdiction and choice of forum, the Child Abduction Convention, and respect for international law and the International Court of Justice.

      Plaintiffs alleged that Manuel Leandres was seriously injured by the deployment of an airbag in their 1995 Mazda Protegé and that his wife, who witnessed this, suffered emotional distress. Defendant Mazda Motor Corporation, aJapanese corporation, moved to dismiss for lack of subjectmatter jurisdiction, as a result of failure to complete service within the statutory limitations period, and insufficiency of service of process. Service appeared to have been completed in accordance with the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters (the "Hague Service Convention"),(fn21) but perhaps not within the three-year period required by Connecticut's Product Liability Act.(fn22)

      The accident occurred on December 18, 1994. On November 3, 1997, about six weeks before the three-year limitation period was to expire, plaintiffs moved, under section 52-59d(b) of the General Statutes,(fn23) for an extension of time for return of service of process. The court granted an extension of the return date until February 24, 1998, and also ordered, for no clear reason, that service of the complaint be completed no later than December 15, 1997.(fn24) The plaintiffs provided the documents to APS International, Ltd., a corporation specializing in service of process on corporations located abroad, on November 20, 1997, and APS transferred them by courier to the Japanese Central Authority on December 5, 1997 - all within the applicable three-year period. On a subsequent, but unknown, date, the Central Authority transferred the documents to a Japanese process server, who completed personal service on the defendant on December 25, 1997.

      In his January 1999 ruling on the defendant's motion to dismiss, the trial court made a procedural point: "The defense of the Statute of Limitations must be specially pleaded and cannot be raised by a motion to dismiss."(fn25) However, where the right of action is created by statute and did not exist at common law, "the time limitation is a substantive and jurisdictional prerequisite, which may be raised at any time, even by the court sua sponte, and may not be waived."(fn26)

      When the defendant, thus educated, returned with the proper pleading, the plaintiffs responded to the effect that they had completed everything within their power when the documents were transferred to the Japanese Central Authority on December 5, almost two weeks before the deadline. Section 52-593 of the General Statutes provides:

a cause or right of action shall not be lost because of the passage of the time limited by law within which the action may be brought, if the process to be served is personally delivered to an officer authorized to serve the process or is personally delivered to the office of any sheriff within the time limited by law, and the process is served, as provided by law, within fifteen days of the delivery.

      We have always thought this gave the sheriff an inappropriate power to destroy a cause of action by failing to serve the papers timely; in Leandres, the court read the statute as giving this power to the Japanese equivalent of the Connecticut sheriff. If delivery of the documents to the Japanese Central Authority, on December 5, was delivery "to an officer authorized to serve the process," then service on December 25 was not within fifteen days and the action was lost. On the contrary, however, the court found that the Japanese Central Authority was not itself the officer authorized to serve the process, but instead was responsible for delivering the documents to that officer. As required by Article 6 of the Hague Service Convention,(fn27) the Japanese authority had certified the method, place and date of service and the person on whom the documents were served, but, of course, it had not reported the date on which it delivered the documents to the process server. As a result, the plaintiffs survived the motion for summary judgment and apparently had to prove that the Japanese Central Authority waited until at least December 10, but not past December 18, to deliver the document to the person authorized to effect service on the defendant.

      The plaintiffs also argued that the court's 1997 extension of time under section 52-59d(b)(fn28) should count for purposes of the Product Liability Act and that the court, again on the basis of section 52-59d(b), should extend the date for service nunc pro tunc in 1999, because the defendant had actual notice of the proceedings and sufficient time to defend. The trial court did not reach the first of these arguments in its January 1999 decision, because the defendant's motion to dismiss was denied as procedurally improper,(fn29) and rejected the second in his November 1999 decision on the ground that the plaintiffs "could have availed themselves of [section 52-59d(b)] to extend the date for service of process on Mazda, prior to the running of the statute of limitations"(fn30) (the latter ruling apparently implicitly rejecting the claim that the court had extended the time for service, as opposed to the time for return of service, in its 1997 order).

      To the extent this indicates section 52-59d(b) authorizes the court to extend a statute of limitations, we have some concern. Unlike section 52-593, section 52-59d contains no mention of substantive rights or limitation periods and nothing in the statutory context or in the history of the latter section suggests that it was intended to deal with such matters. Section 52-59d(b)'s standards of actual notice and time to defend are not the standards of a statute of limitations. The central issue to which section 52-59d(b) responds is that, in some cases, return of service effected abroad cannot be made within sixty days, but under section 52-48 a return date cannot be selected more than two months in advance. A better way to avoid this problem might be for the court to authorize the appropriate Central Authority to arrange service of the paperwork, thereby bringing it within the definition of a process server. The court could then extend the time for the Central Authority (and its agents) to effectuate service of process. The practical result would be the same, but with important differences in the reasoning.

      The defendant, a Canadian corporation, was served in Saint John, New Brunswick, by a local deputy sheriff. The individual who accepted service was the defendant's Controller, who would not be an acceptable corporate officer for this purpose under section 52-57(c) of the Connecticut General Statutes. However, in this case, service was made pursuant to the Hague Service Convention, which calls for service "by a method prescribed by [the] internal law [of the receiving state] for service of documents in domestic actions upon persons within its territory,"(fn32) making this a question for the law of Canada and New Brunswick.(fn33) No New Brunswick decisions or secondary authorities were brought to the court's attention, so it construed the New Brunswick statute itself, aided by judicial construction of similarlanguage in the Wisconsin statute, finding that a controller was an appropriate person to accept service under the law of New Brunswick.

      The Hague Service Convention does not expressly require the court to accept the foreign central authority's certificate of service(fn34) as definitive, but we think the court should do so in the absence of extraordinary circumstances (although we do not see this sort of detail as rising to the level of "extraordinary"). However, once the court reached this issue, it dealt with it well, in the international tradition of the common law, aided by the fact that all the relevant jurisdictions - Connecticut, New Brunswick, and Wisconsin - are common law jurisdictions, in which common-law lawyers and judges can feel reasonably at home.

      Arochem is the collective name of two affiliated oil companies that had their principal place of business in Stamford. Their president and majority shareholder, Will Harris, was convicted of multiple counts of bank fraud.(fn36) In this case, Bank Brussels Lambert, one of a group of five banks that lent $245 million to Arochem but were not repaid, alleges that Fiddler Gonzalez & Rodriguez, a Puerto Rican law firm, was aware of some of Harris's manipulation of the company's accounting procedures and financial reports but nevertheless provided a clean opinion to the Puerto Rican branch of Chase Manhattan Bank, another member of the lending group. There is a substantive issue waiting for later resolution here, because the law firm appears to have received this information about Harris under attorney-client privilege. Under the law of New York or Connecticut, this would entail at least a duty not to disclose the information, but perhaps also a duty to attempt to withdraw from both representations without disclosing the contents of the privileged materials.(fn37) Perhaps, therefore, the alleged tort would have to be the failure to attempt to withdraw. The court, however, avoided immediate consideration of this issue on the ground that "Puerto Rico is a mixed civil and common law rather than a pure common law jurisdiction. . . . Consequently, some of our most familiar common law tort concepts may be inapplicable there. . . . Puerto Rico also has its own code of professional conduct."(fn38)

      The major issue reached by the court was whether the defendant law firm was subject to New York jurisdiction. On the basis (which is uncertain, as just noted) that the tort alleged is misrepresentation, the court found New York, where the plaintiff disbursed funds to Arochem, to be the situs of injury. Applying New York law, it held that one of two additional requirements must be met to establish jurisdiction, namely either: (1) regular solicitation in New York; or other persistent course of conduct there, or substantial revenue from New York; or (2) a reasonable expectation of consequences in New York, plus substantial revenue from interstate or international commerce.(fn39) The case was remanded to the district court for findings on these latter points.

      2. Asbestosis Claimants v. American Steamships Owners Mutual Protection & Indemnity Association, Inc.

      Some 12,000 employees filed claims for asbestos-related injuries allegedly suffered aboard ships of the debtors in bankruptcy. Among the debtors' insurers was the Travelers Insurance Company. One aspect of this very complex matter(fn40) was the arbitration clause in certain insurance contracts. In Asbestosis Claimants v. American Steamships Owners Mutual Protection & Indemnity Association, Inc.,(fn41) the Court of Appeals for the Second Circuit affirmed the Bankruptcy Court's stay of arbitration, requiring the disputes between the insurance companies and the insureds to be decided in the Bankruptcy Court.

      The Second Circuit recognized the strong public policy in favor of arbitration, particularly in international matters, but found sections 105 and 362 of the Bankruptcy Code(fn42) and the legislative history of the latter to demonstrate the clear intent of Congress to permit a bankruptcy court to override even international arbitration agreements. The insurance contracts were held to be a "core"(fn43) bankruptcy matter, "but even a determination that a proceeding is core will not automatically give the bankruptcy court discretion to stay arbitration."(fn44) In this case, "the bankruptcy court is the preferable venue in which to handle mass tort actions involving claims against an insolvent debtor. . . . The need for a centralized proceeding is further augmented by the complex factual scenario, involving multiple claims, policies and insurers."(fn45) Thus the findings on which the Bankruptcy Court based its discretionary stay of arbitration were not clearly erroneous.

      An Italian company, Illva Saronno, S.p.A., makes Amaretto di Saronno, a liqueur. Under a 1986 agreement, Ilva Saronno granted to International Distillers and Vintners, Ltd. ("IDV-London"), an English company and a subsidiary of Grand Metropolitan PLC, the exclusive right to sell Amaretto di Saronno in the United States. The actual distributors in the United States were IDV-London's subsidiaries, Paddington Corporation and Heublein International.

      In 1997, Paddington was merged into Heublein, which changed its name to IDV North America, Inc., and their parent company, Grand Met, merged with Guinness PLC to form Diageo PLC. Illva Saronno considered that the resulting, far larger corporate group would "inevitably relegate Amaretto di Saronno to the status of one product amongst many others . . . in a situation of open conflict and competition within the new structure."(fn47) Illva Saronno gave notice that it was terminating the distribution agreement on the ground that the change of control constituted a contractual termination event.

      The distribution agreement provided that it was governed by Italian law and gave the Court of Milan, Italy, jurisdiction to decide all disputes. Illva Saronno filed suit there in March 1998, asking the court either to terminate the contract or to declare that it had been terminated already by the distributors' breach. Two months later, in May 1998, IDV North America filed its own action in Connecticut, seeking damages, a declaration that Illva Saronno had no cause to terminate the contract and an injunction requiring continued performance. Illva Saronno moved to dismiss on the grounds of the forum selection clause, forum non conveniens, and lack of personal jurisdiction.

      Personal jurisdiction was based on section 33-929(f) of the General Statutes, in that the contract was to be performed in Connecticut. The defendant argued that its performance was wholly in Italy, but the plaintiffs argued, and the court agreed, "that performance of the agreement in Connecticut by the plaintiffs alone is sufficient to satisfy the statute."(fn48) As to the due process requirement of minimum contacts, not only did the contract contemplate performance in the United States, including Connecticut, but also the defendant's representatives or employees met regularly with the plaintiffs' employees in Connecticut during the course of their relationship.

      The distribution agreement gave the Court of Milan jurisdiction, but did not specify that the jurisdiction was exclusive. The court pointed out that both Connecticut courts and other courts in the United States usually hold that a contractual choice of forum is not exclusive unless its language indicates that exclusivity was intended(fn49) and cited Italian Supreme Court decisions said to be to the same effect.(fn50) In the absence, in the court's view, of a "true conflict"(fn51) it seems not to have mattered, but the court found also that Italian law applied to the interpretation of the forum-selection clause, essentially because there was a sufficient connection to Italy and no showing of a "materially greater" connection to Connecticut.(fn52)

      In our opinion, Article 17 of the Brussels Convention(fn53) required a finding that the choice of the Italian forum made the forum-selection clause exclusive as a matter of Italian law. In reaching the opposite conclusion, the trial court, as its common-law training required, focused on Italian precedents to a greater extent than an Italian court usually would. While we cannot say the trial court was wrong to do so, the two Italian cases cited do not support the conclusion that the Italian courts do not "interpret Article 17 of the Brussels Convention as operating to transform any choice of forum into an exclusive one."(fn54) For Iuliucci v. Merlo Metalmeocanica,(fn55) there is a full report in Giurisprudenza Italiana; from which it is clear that the contract gave the court of Cuneo, Italy, jurisdiction, but the plaintiff's action was brought in the court of Avellino, Italy. Article 17 does not apply if both parties and the selected forum are all in the same country and the Brussels Convention is not mentioned at all in the report. As to La Svizzera Soc. Anonima Assicurazioni Generali v. Cavalli, the sentence quoted in IDV North America, Inc. v. Illva Saronno, S.p.A. is an English translation of a one-sentence report of the holding in Massimario Annotato della Cassazione,(fn56) soperhaps the defendant's expert had no more than this. However, there is a full report in a UTET database on CDROM(fn57) from which it is clear that the facts were similar to those of Iuliucci: the general conditions of the insurance policy provided for jurisdiction in the town where the insured resided, which in this case was Pontenure, Italy, but the insurance company, legally domiciled in Rome, sued in Genoa, Italy. Again, the Brussels Convention did not apply and was never mentioned.

      In short, the Italian cases cited may well state the Italian domestic law when no treaty is involved, but in Italy - as in most countries other than the United States - treaties outrank domestic law. If the domestic courts are in doubt(fn58) about the interpretation of a European Union treaty, such as the Brussels Convention, they are required to refer the question to the Court of Justice. A leading case in the latter court is Sanicentral GmbH v. Collin,(fn59) which appears to be directly on point, holding that article 17 applies and overrides even specifically contrary national law. In Sanicentral, a French national was employed under a contract that specified jurisdiction of the German courts, which was not permissible under French law. The treaty was held to override the French law, so that the German courts had exclusive jurisdiction and the employee's action in a French court had to be dismissed.

      If the Brussels Convention applies, there can be no such thing as forum non conveniens, because the Convention requires any court in the EU having jurisdiction - which, in this case, can only be the Court of Milan - to accept thecase. However, having concluded that the Convention did not apply, the court proceeded to discuss forum non conveniens at length.

      It is important to make a distinction here: in most of the cases in which it is asserted, there is no competing lawsuit pending and forum non conveniens amounts to no more than "this action should be brought in a more appropriate place." When a competing lawsuit is pending elsewhere, however, the court should take into account the Conflict of Jurisdictions Model Law, which was enacted in Connecticut in 1991 and is now sections 50a-200 through 50a-203 of the General Statutes.

      Section 50a-202 lists fourteen factors to be considered in the determination of the adjudicating forum. The court never mentioned section 50a-202, but instead relied heavily on Miller v. United Technologies Corp.(fn60) and Picketts v. International Playtex, Inc.(fn61) These were actions in tort, neither of which involved competing fora and both of which were decided before the statute was enacted. In Illva Saronno, the court's forum non conveniens analysis was rather good, but it was not a conflict-of-jurisdictions analysis based on the statutory factors. The court concluded that the forum non conveniens factors it considered did not weigh sufficiently in favor of the Italian forum to justify dismissal on this ground. However, in the interests of "judicial economy and the conservation of resources," the court stayed the Connecticut proceeding "until the Italian action is resolved or further order of the court."(fn62)

      The wife, a Jamaican national, sued for divorce from the husband, a Dutch national, in The Netherlands, where they had been living for about three years. The Dutch court awarded temporary custody of their son, a United States citizen born in Connecticut when both of his parents lived here, to the father. She moved for a rehearing on temporary custody, alleging sexual abuse of the child by his father, but the Dutch court did not "accord to those claims any credibility"(fn64) and continued temporary custody with the father. The mother then

unilaterally and properly withdrew her action for divorce from the Dutch court, obtained a replacement passport for her son and withdrew from Holland to Brussels. From there, both mother and son returned to the United States where they have remained through the date of this hearing.(fn65)

      The father moved, in the Superior Court at Middletown, for return of the child to The Netherlands pursuant to Connecticut's Uniform Child Custody Jurisdiction Act,(fn66) the federal Child Abduction Remedies Act(fn67) and the Hague Convention on the Civil Aspects of International Child Abduction (the "Child Abduction Convention").(fn68) But for the allegation of sexual abuse, this would have been a routine case, requiring prompt return of the child to his place of habitual residence before the abduction.

      Article 13 of the Child Abduction Convention allows the courts and administrative authorities of the requested state to refuse return of the child if the person opposing return establishes that "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." Connecticut courts have previously considered allegations of such risk; in the one case of which we are aware in which return of the child was refused, the court found not only risk to the child, but also that the risk could not be mitigated by the return of the mother with the child, because of risk to her also in the child's home jurisdiction.(fn69) In Turner v.Frowein, there was the usual self-serving testimony of the abducting parent, including hearsay about statements by the child, who was too young, at age 7, to testify. In addition, however, there was testimony from a child psychologist, a psychiatric social worker, a Yale professor of pediatrics, a school psychologist and a neighbor, all supporting the claim of sexual abuse by the father, and some evidence that the mother would be subject to official sanctions if she returned to The Netherlands with the child.(fn70) On the basis of this "clear and convincing" evidence, the court refused to order return of the child.

      Disregarding the requests of the International Court of Justice(fn72) and the Federal Republic of Germany, the United States Supreme Court declined to stay the execution of Walter LaGrand(fn73) long enough for a hearing on Germany's claim of a violation of the Vienna Convention on Consular Relations.(fn74)

      Karl and Walter LaGrand, both German nationals (although they had been raised in the United States and spoke little or no German), were charged in Arizona with murder of a bank manager during a 1982 robbery and sentenced to death. German officials first learned of the matter in 1992, and only from the LaGrands themselves, rather than the United States or the State of Arizona. Germany sought to prevent the executions through diplomatic channels,(fn75) including a personal request from Chancellor Gerhard Schröder to President William Clinton during a visit to Washington in February 1999 and a letter from Vice Chancellor and Foreign Affairs Minister Joschka Fischer to Secretary of State Madeleine Albright dated February 22, 1999,(fn76) but Karl LaGrand was executed on February 24, 1999 and his brother was scheduled for execution on March 3, 1999. At 7:30 p.m. (Hague time) on March 2, Germany filed an application with the ICJ, alleging that the State of Arizona detained its nationals and sentenced them to death without informing them, as required by Article 36 of the Vienna Convention,(fn77) of their right to contact the German consulate for assistance. Germany alleged also that the State of Arizona had contended it was unaware that the LaGrands were German nationals, but that the State Attorney had admitted, during proceedings before the Arizona Mercy Committee on February 23, 1999, that the State had been aware of this since 1982. On March 3, the ICJ issued its unanimous decision, concluding:

      29. For these reasons,

      THE COURT

      Unanimously,

      I. Indicates the following provisional measures:

(a) The United States of America should take all measures at its disposal to ensure that Walter LaGrand is not executed pending the final decision in these proceedings, and should inform the Court of all the measures which it has taken in implementation of this Order;

(b) The Government of the United States of America should transmit this Order to the Governor of the State of Arizona.

      II. Decides, that, until the Court has given its final decision, it shall remain seised of the matters which form the subject-matter of this Order.(fn78)

      The same day, Germany petitioned the United States Supreme Court for leave to file a bill of complaint and for a preliminary injunction to stay the execution. In a single paragraph, the Court found the petition's Constitutional basis(fn79) "doubtful" and Germany's pleas "tardy," and so dismissed the action.(fn80) Walter LaGrand died in Arizona's gas chamber on March 4, 1999.

      Germany's original Application to the ICJ asserted that

(1) the criminal liability imposed on Karl and Walter LaGrand in violation of international legal obligations is void, and should be recognized as void by the legal authorities of the United States;

(2) the United States should provide reparation, in the form of compensation and satisfaction, for the execution of Karl LaGrand on 24 February 1999;

(3) the United States should restore the status quo ante in the case of Walter LaGrand, that is re-establish the situation that existed before the detention of, proceedings against, and conviction and sentencing of that German national in violation of the United States' international legal obligation took place; and

(4) the United States should provide Germany a guarantee of the non-repetition of the illegal acts.(fn81)

      Germany pursued its case for damages and a guaranty of non-repetition by filing its Memorial in the ICJ on September 16, 1999. The Counter-Memorial for the United States was filed on March 27, 2000, and oral argument scheduled for November 2000. While these issues have not previously reached the ICJ, it is worth noting that an Amnesty International report published in January 1998 had accused the United States of some 60 other cases of violations of the rights under the Vienna Convention of foreign nationals then under sentence of death.(fn82)

________________________
Footnotes:

      * Of the Meriden Bar; Vice-Chair (External Affairs) and sometime Chair of the Connecticut Bar Association's Section of International Law and World Peace.

      ** Professor, Lally School of Management and Technology, Rensselaer Polytechnic Institute, Hartford; Chair of the Connecticut Bar Association's Section of International Law and World Peace.

      1 The implementing legislation is 18 U.S.C. §§ 2340 et seq. The discussion in the text is of the State Department's implementing regulations, 22 C.F.R. pt. 95 (1999)(reprinted in 64 Fed. Reg. 9435 (Feb. 26, 1999)). The implementing regulations of the Immigration and Naturalization Service appear in 22 C.F.R. pts. 3, 103, 208, 235, 238, 240, 241, 253 (reprinted in 64 Fed. Reg. 33 at 8478-96 (Feb. 19, 1999)). See also EOIR Policy on U.N. Convention Against Torture, at http://www.shusterman.com/cat-eoir599.html (May 14, 1999)(issued by Office of Chief Immigration Judge).

      2 Dec. 10, 1984, 1465 U.N.T.S. 84, CTIA 8,623.000 (entered into force for the United States on Nov. 10, 1994)[hereinafter "Torture Convention"], available at http://www.unhchr.ch/html/menu3/b/h_cat39.htm. In its instrument of ratification, the United States declared the Torture Convention to be "non-self-executing." The implementing legislation is cited supra, note 1.

      3 Extradition treaties usually include a general condition, sometimes called the "doctrine of specialty," that the returned fugitive be prosecuted only for the crime for which extradition is granted. See United States v. Monsalve, No. 98-1050, 1999 U.S. App. LEXIS 3695 (2d Cir. Mar. 5, 1999)(doctrine does not prohibit the use of evidence not available in the country that granted extradition). We commented on Switzerland's use of conditional extradition in Houston Putnam Lowry & Peter W. Schroth, Survey of 1997 Developments in International Law in Connecticut, 72 CONN. B.J. 364, 370 (1998). See also Murphy v. United States, 199 F.3d 599 (2d Cir. 1999)(no defense to extradition that the statutory limitation period for the corresponding crime in the United States has expired).

      4 This is part of the 1998 Omnibus Budget bill, Pub. L. No. 105-277, 112 Stat. 2681-822 (tit. XXII, div. G, subdiv. B). Cf. Wong v. Warden, FCI Raybrook, 171 F.3d 148 (2d Cir. 1999)(holding, in the context of international prisoner transfer rather than extradition, that judicial review is available for allegations of constitutional violations even when the agency decisions underlying the allegations are discretionary).

      5 The Arbitration Institute provides the full text of its rules, suggested contractual arbitration clauses, articles about arbitration before the Institute, and other materials at its web site. See http://www.chamber.se/arbitration/english (n.d.).

      6 See Rules of the Arbitration Institute, at http://www.chamber.se/arbitration/english/rules/scc_rules_cont.asp (Apr. 1, 1999).

      7 See Rules for Expedited Arbitrations, at http://www.chamber.se/arbitration/english/rules/expedited_rules_cont.asp (Apr. 1, 1999).

      8 See Rules of the Mediation Institute at http://www.chamber.se/arbitration/english/rules/mediation_toc.asp (Apr. 1, 1999).

      9 Christopher Newmark & Richard Hill, Note, Can a Mediated Settlement Become an Enforceable Arbitration Award?, 16 ARB. INT'L 81 (2000).

      10 The LCIA's web site provides the full text of its rules, suggested contractual arbitration clauses, links to other materials on international arbitration, and other materials. See http://www.lcia-arbitration.com (last updated May 24, 2001). We reprinted the 1998 LCIA Rules as an addendum to Houston Putnam Lowry & Peter W. Schroth, Survey of 1998 Developments in International Law in Connecticut, 73 CONN. B.J. 349, 381-94 (1999) [hereinafter "1998 Survey"].

      11 See LCIA Mediation Procedure at http://www.lcia-arbitration.com/town/square/xvc24/rulecost/mediation.htm.

      12 The IBA's web site is an extremely rich source of materials on many areas of international law and practice. See http://www.ibanet.org (n.d.).

      13 See Rules on the Taking of Evidence in International Commercial Arbitration, at http://www.ibanet.org/pdf/rules-of-evid-2.pdf.

      14 64 Fed. Reg. 53632 (Oct. 4, 1999). See Rules of Procedure of the Inter-American Arbitration Commission, at http://www.sice.oas.org/dispute/comarb/iacac/rop_e.asp (July 1, 1988).

      15 The ICAC web site is detailed and useful, but in Spanish only. See http://www.ccb.org.co/ciac/default.htm (n.d.). More limited information in English may be found on the OAS web site at http://www.sice.oas.org/dispute/comarb/iacac/iacac1e.asp. Although it is the only organization ever named in an international agreement as a forum for dispute resolution, ICAC does not have a large docket of pending cases. There is also a Commercial Arbitration and Mediation Center for the Americas, which has published rules. See http://www.adr.org/rules/international/camca_rules.html (Mar. 15, 1996).

      16 Inter-American Convention on International Commercial Arbitration, done at Panama City, Jan. 30, 1975, O.A.S.T.S. No. 42, 14 I.L.M. 336 (1975)(entered into force for the United States Sep. 27, 1990)[hereinafter Panama Convention], available at http://www.sice.oas.org/dispute/comarb/iacac/iacac2e.asp (Jan. 30, 1975). The Panama Convention provides for recognition and enforcement of arbitral awards and is, to some extent, an alternative to the New York Convention. In particular, Brazil, Honduras (which became a party to the New York Convention effective January 1, 2001), Nicaragua, and Uruguay are parties to the Panama Convention, but not to the New York Convention. Other recent ratifications are El Salvador, which became a party effective May 27, 1998, and Paraguay, which became a party effective January 6, 1998.

      17 ICC Publication No. 560, ISBN 92-842-1199-9, available in the United States from ICC Publishing, Inc., 156 Fifth Avenue, New York, New York 10010, or from the "ICC Business Bookstore," http://www.iccbooks.com (n.d.). The intervening editions of Incoterms were dated 1953, 1967, 1976, 1980, and 1990. The ICC is understood to intend the ten-year interval to continue, so the next edition may take effect in 2010. Although an ICC press release stated that Incoterms 2000 would come into force "on the first day of the new millennium," in fact they took effect a year earlier, on January 1, 2000. The ICC is also the publisher of the very useful JAN RAMBERG, ICC GUIDE TO INCOTERMS 2000 (1999), ICC Publication No. 620, ISBN 92-842-1269-3.

      18 The following are cases with interesting international aspects, but few or no obvious Connecticut aspects, decided by the United States Court of Appeals for the Second Circuit:

      ù National Broadcasting Company v. Bear Sterns, 165 F.3d 184 (2d Cir. 1999) (commercial arbitration in Mexico not "proceeding in a foreign or international tribunal" for purposes of discovery under 28 U.S.C. §1782). The panel included Connecticut District Court Judge Chatigny, a local link that we reserve the right to consider a sufficient nexus in future articles.

      ù Compare Kahn Lucas Lancaster, Inc. v. Lark Int'l Ltd., 186 F.3d 210 (2d Cir. 1999)(order compelling arbitration reversed because defendant did not sign the document containing the arbitration clause) with American Bureau of Shipping v. Tencara Shipyard, 170 F.3d 349 (2d Cir. 1999) (persons who are estopped from denying their obligations under arbitration agreement to which they were not parties are therefore estopped from asserting lack of personal jurisdiction based on that agreement).

      ù Blondin v. Dubois, 189 F.3d 240 (2d Cir. 1999) (detailed consideration of a difficult case under the Child Abduction Convention). This case has been selected for a comment in the New York International Law Review, probably to appear in 2001.

      ù Baker Marine (Nig.) Ltd v. Chevron (Nig.) Ltd., 191 F.3d 194 (2d Cir. 1999) (district court's refusal to enforce arbitration awards set aside by Nigerian court is affirmed; court's interesting analysis includes consideration of the five official versions - French, Spanish, English, Chinese and Russian - of the New York Convention).

      ù Smith/Enron Cogeneration Ltd. P'ship, Inc. v. Smith Cogeneration Int'l, Inc., 198 F.3d 88 (2d Cir.1999) (order compelling arbitration affirmed). We are intrigued by the idea of a "Limited Partnership, Inc." - the court identifies this entity as a Turks and Caicos company.

      19 In Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999), the Supreme Court held that the thirty-day period in which the plaintiff could remove a case from state to federal court began only on the date of formal service of process, not on the earlier date on which the defendant received a copy of the complaint by fax.

      20 CV-98-0351600, 1999 Conn. Super. LEXIS 111 (Jan. 15,1999)(Melville, J.)(ruling on motion to dismiss); 1999 Conn. Super. LEXIS 3262 (Nov. 12, 1999)(ruling on motion for summary judgment).

      21 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), available at http://www.hcch.net/e/conventions/text14e.html (Nov. 15, 1965) (reprinted in 28 U.S.C., Fed. R. Civ. P. Rule 4, at 210 (1992); see also MARTINDALE-HUBBELL LAW DIRECTORY).

      22 CONN. GEN. STAT. §§ 52-572m et seq. The three-year limitation period is found in section 52-577a.

      23 Section 52-59d, entitled "service of process outside country to be in accordance with treaty or convention or court order," provides:

(a) Notwithstanding any provision of the general statutes relating to service of process, civil process shall not be served outside of the United States of America in violation of any applicable treaty or convention, including without limitation, the Hague Convention on Service of Process Abroad.

(b) If service of process cannot be made under the applicable treaty or convention within sixty days, the Superior Court may, upon application, order service of process upon such terms as the court deems reasonably calculated to give the defendant actual notice of the proceedings in sufficient time to enable the defendant to defend.

      This provision is discussed in Houston Putnam Lowry & Peter W. Schroth, Survey of 1991 Developments in International Law in Connecticut, 66 CONN. B.J. 64, 65-68 (1992) [hereinafter "1991 Survey"]; Houston Putnam Lowry & Peter W. Schroth, Survey of 1996 Developments in International Law in Connecticut, 71 CONN. B.J. 185, 185-89 (1997) [hereinafter "1996 Survey"]; and 1998 Survey at 363-65. The related Practice Book section 202A (since renumbered to Practice Book section 11-8) is discussed in Houston Putnam Lowry & Peter W. Schroth, Survey of 1994 Developments in International Law in Connecticut, 69 CONN. B.J. 143, 147-49 (1995)[hereinafter "1994 Survey"] and in 1996 Survey at 187-89. The statute and the Practice Book section are considered together in Houston Putnam Lowry & Peter W. Schroth, Survey of 1995 Developments in International Law in Connecticut, 70 CONN. B.J. 68, 76-81 (1996) [hereinafter "1995 Survey"]. These provisions are discussed in light of the lengthy period typically required for service in Japan in 1994 Survey at 156-57 and in 1995 Survey at 79-81.

      24 The court later extended the return date again, to March 31, 1998.

      25 1999 Conn. Super. LEXIS 111 at 3.

      26 Id.

      27 The relevant sentence of this article reads, "The certificate shall state that the document has been served and shall include the method, the place and the date of service and the person to whom the document was delivered." A form of certificate appears as an annex to the Convention.

      28 See supra note 23.

      29 1999 Conn. Super. LEXIS 111 at 6.

      30 1999 Conn. Super. LEXIS 3262 at 5 n. 1.

      31 No. 392820, 1999 Conn. Super. LEXIS 519 (Feb. 18, 1999).

      32 Hague Service Convention, supra, note 21, art. 5(a).

      33 It was specifically a question of New Brunswick law, because, in ratifying the Hague Service Convention, Canada stated, "In Canada, service will be effected according to the methods of service prescribed by the laws in force in each province and territory."1999 Conn. Super. LEXIS 519 at 5; see also http://www.hcch.net/e/status/stat14e.html#ca (last updated June 6, 2001).

      34 See supra note 27.

      35 171 F.3d 779 (2d Cir. 1999)

      36 See United States v. Harris, 79 F.3d 223 (2d Cir. 1996).

      37 For Connecticut, these conclusions follow from Rules 1.6(a) and 1.16(a)(1) of the Rules of Professional Conduct. For New York, see Code of Professional Responsibility, EC 4-1 and EC 4-5.

      38 171 F.3d at 785-86.

      39 N.Y. C.P.L.R. § 302(a)(3)(i) - (ii) (McKinney 1999).

      40 See also United States Lines, Inc. v. American S.S. Owners Mut. Protection & Indem. Ass'n, 169 B.R. 804 (Bankr. S.D.N.Y. 1994); United States Lines, Inc. v. American S.S. Owners Mut. Protection & Indem. Ass'n, 220 B.R. 5 (S.D.N.Y. 1997).

      41 197 F.3d 631 (2d Cir. 1999).

      42 11 U.S.C. §§ 105, 362. The latter is the automatic stay provision.

      43 See Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982).

      44 197 F.3d at 640.

      45 Id. at 641.

      46 CV-99-058059, 1999 Conn. Super. LEXIS 2540 (Sept. 9, 1999).

      47 Id. at 5 n.2 (from a translation of the Italian "writ of summons").

      48 Id. at 12.

      49 Id. at 31-32.

      50 Id. at 38.

      51 See Brainerd Currie, The Disinterested Third State, 28 LAW & CONTEMP. PROB. 754, 778 (1963); Brainerd Currie, Notes on Methods and Objectives in the Conflict of Laws, 1959 DUKE L.J. 171, 176.

      52 1999 Conn. Super. LEXIS 2540 at 34 -35.

      53 The first sentence of article 17 of the Brussels Convention provides:

If the parties, one or more of whom is domiciled in a Contracting State, have agreed that a court or the courts of a Contracting State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have exclusive jurisdiction.

1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (consolidated version), 1998 O.J. (C 27) 1, amended, 2000 O.J. (C 160) 1. The full text of the Brussels Convention is available on line. See http://europa.eu.int/eur-lex/en/lif/dat/1998/en_498Y0126_01.html (Nov. 3, 1999).

      54 1999 Conn. Super. LEXIS 2540 at 38.

      55 Cass., sez. II, 20 dicembre 1995, n. 12971, Giur. It. 1997, I, 232.

      56 Cass., sez. I, 25 marzo 1994, n. 2915, Giust. Civ. 1994, Massimario Annotato della Cassazione, 389. The company here called "La Svizzera Soc. Anonima Assicurazioni Generali" would appear to be Swiss Life (Schweizerische Lebensversicherungs-Gesellschaft) of Zurich, Switzerland, which is usually called "Societ`a svizzera di Assicurazioni generali" in Italian. If so, and this was an international case involving a Swiss party and an Italian party, the Brussels Convention would not apply, because the parties to this convention are the member states of the European Union.

      57 Cass., sez. I 25 Mar. 1994, n. 2915 (UTET, Cassazione Civile database).

      58 At least one of the authors considers the classic discussion of what domestic courts in the EU should do if they are not in doubt about the correct interpretation to be Peter W. Schroth, Marbury and Simmenthal: Reflections on the Adoption of Decentralized Judicial Review by the Court of Justice of the European Community, 12 LOY. L.A. L. REV. 869 (1979).

      59 Case 25/79, 1979 E.C.R. 3423, [1980] 2 C.M.L.R. 164.

      60 40 Conn. Supp. 457, 515 A.2d 390 (1986).

      61 215 Conn. 490, 576 A.2d 518 (1990).

      62 1999 Conn. Super. LEXIS 2540 at 55-56.

      63 FA-97-0084450, 1998 Conn. Super LEXIS 3781(June 25, 1998).

      64 Id. at 8.

      65 Id. at 9.

      66 CONN. GEN. STAT. §§ 46b-93 to -113.

      67 42 U.S.C. § 11601 et seq.

      68 Oct. 25, 1980 (entered into force for the United States April 29, 1988). The text of the Convention is also available at 51 Fed. Reg. 58 (Mar. 26 1986); in the MARTINDALE-HUBBELL LAW DIRECTORY; and on line at http://www.hcch.net/e/conventions/text28e.html (Oct. 25, 1980). For details on the parties to this convention, see 1998 Survey, supra note 10 at 360 n.41..

      69 These were the findings in Pantazatou v. Pantazatos, FA-96-0713571, 1997 Conn. Super. LEXIS 2627 (April 29, 1997), although the only "grave risk" mentioned was of future psychological harm resulting solely from the child's separation from her mother. In the complete absence of evidence that the father was not a satisfactory parent, this sexist prejudice against men as parents - resulting in a court order keeping the abducted child away from her father - does not rise to the level of "grave risk" required by the Child Abduction Convention and the statutes. It appears the parents subsequently reached an agreement for joint custody and the return of both mother and daughter to Greece, underlining the inappropriateness of the court's original finding of "grave risk." Pantazatou v. Pantazatos, 1997 Conn. Super. LEXIS 2617 (Sept. 24, 1997).

      In Renovales v. Roosa, FA-91-0392232, 1991 Conn. Super. LEXIS 2215 (Sept. 27, 1991), the court found that:

the respondent has failed to prove by "clear and convincing" evidence that the children will be "exposed" to grave risk of either physical or psychological harm or that they will be placed in an intolerable situation. . . . While the father may be a stern taskmaster for his children, the evidence, when objectively weighed and measured, shows a man who loves his children, has provided for them adequately, and who wants the best for his kids. Certainly, he is not perfect, but what the court heard was cultural differences in family child rearing that became more pronounced as love disappeared from the spousal relationship. When both parents struggle, the heat and din of the battle masks the positive contributions of both sides to the children. Perceived wrongs become amplified in the extreme.

The children were ordered returned to Spain. See 1991 Survey, supra note 23 at 78-80.

      70 Although we observe that the trial court thought this point important, we reject it. It will usually be the case that the abducting parent is subject to legal sanctions in the place from which the child was unlawfully taken. This certainly should not be seen as an argument for declining to undo a wrongful abduction.

      71 526 U.S. 111 (1999). The connection between this case and the state of Connecticut was made clear in a recent article in this journal. See Emanuel Margolis, New Life for Connecticut's Death Penalty: Revisited, 74 CONN. B.J. 216 (2000). However, in United States v. Walker, No. 98-1591, 1999 U.S. App. LEXIS 11957 (2d Cir. June 4, 1999), the defendant, a citizen of Jamaica convicted of firearms possession in Connecticut, unsuccessfully raised the federal government's violation of the Vienna Convention on Consular Relations.

      72 Case Concerning the Vienna Convention on Consular Relations (Germany v. United States of America), No. 104, 3 March 1999, at http://www.icj-cij.org/icjwww/idocket/igus/igusorder/igus_iorder_19990303.htm (Mar. 3, 1999).

      73 The name is spelled LaGrand, La Grand, LeGrand, and Legrand in various sources. In the official photographs taken by the Arizona Department of Corrections, the brothers are identified as Karl La Grand and Walter B. LeGrand. See "USA lehnen Entsch¨adigung wegen Hinrichtung zweier Deutscher ab," at http://de.news.yahoo.com/001114/71/16g0b.html (1/15/01)(on file with the Connecticut Bar Journal); "Deutsche M¨order: Lieber Gaskammer als Giftspritze," at http://www.BILD.de/service/archiv/1999/feb/14/bams/mord14/mord14.html (2/14/99).

      74 Vienna Convention on Consular Relations and Optional Protocols, 596 U.N.T.S. 8638-40, pp. 262-512 [hereinafter Vienna Convention].

      75 In its application instituting the proceedings, Germany detailed its efforts to prevent the execution of the brothers:

The Government of the Federal Republic of Germany has used every diplomatic means at its disposal in order to prevent the carrying out of the death sentences against Karl and Walter LaGrand. Numerous interventions have been made. Both the President and the Chancellor of the Federal Republic of Germany have appealed to the President of the United States. Foreign Minister Fischer and Justice Minister D`aubler-Gmelin have raised the issue with their respective counterparts in the United States Administration and with the Governor of the State of Arizona. Démarches have been undertaken by the German Ambassador to the United States. The German Ambassador and the German Consul-General have appeared before the Mercy Committee of the State of Arizona on the day prior to the execution of Karl LaGrand. They intend to do the same at the hearing of the Mercy Committee that is to decide on the fate of Walter LaGrand.

Germany v. United States, Application Instituting Proceedings, ¶ 9, at http://www.icjcij. org/icjwww/idocket/igus/igusapplication/igus_iapplication_19990302htm (Mar. 2, 1999).

      76 In addition, Germany's Ambassador to the United States, Juergen Chrobog, met with the Arizona Board of Executive Clemency, which on March 2, 1999 voted 2-1 to stay Walter LaGrand's execution for 60 days pending Germany's filing of an action in the ICJ. Governor Jane Hull overruled the Board. Mark Shaffer, Death Upheld for 2nd Lagrand, ARIZ. REP. (Mar. 2, 1999).

      77 Article 36 of the Vienna Convention provides:

      COMMUNICATION AND CONTACT WITH NATIONALS OF THE SENDING STATE

      1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:

(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;

(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;

(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

      2. The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended. See supra note 73. A booklet on this, entitled Consular Notification and Access: Instructions for Federal, State, and Local Law Enforcement and Other Officials Regarding Foreign Nationals in the United States and the Rights of Consular Officials to Assist Them, was published by the State Department in 1998.

      78 See Germany v. United States, at http://www.icj-cij.org/icjwww/idocket/igus/igusorder/igus_iorder_19990303.htm (Mar. 3, 1999). The Court was composed of fourteen judges. Judge Oda and President Schwebel filed what amount to concurring opinions, both to the effect that the Court's issuance of a provisional order was not appropriate in the circumstances. Judge Oda stated that he "voted in favour of the Court's Order with great hesitation," Germany v. United States, Declaration of Judge Oda, http://www.icj-cij.org/icjwww/idocket/igus/igusorder/igus_iorder_19990303_declarationOda.htm, while President Schwebel stated, "I do not oppose the substance of the Court's Order, and accordingly have not voted against it." See http://www.icj-cij.org/icjwww/idocket/igus/igusorder/igus_iorder_19990303_separateSchwebel.htm.

      79 The case was filed as an original action in the Supreme Court, naming both the United States of America and the Governor of the State of Arizona as defendants. The United States Constitution provides: "In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party, the supreme court shall have original jurisdiction." U.S. CONST. art. III, § 2, cl. 2.

      80 Justices Souter and Ginsburg concurred, noting that they did not rely on any Eleventh Amendment principle. 526 U.S. at 112. Justices Breyer and Stevens dissented and would have stayed the execution long enough for full briefing, considering it "at least arguable that Germany's reasons for filing so late are valid, and the jurisdictional matters are arguable." Id. at 114.

      81 Germany v. United States, Application Instituting Proceedings, at http://www.icj-cij.org/icjwww/idocket/igus/igusapplication/igus_iapplication_19990302.htm (Mar. 2, 1999).