Survey of 1991 Developments in International Law in Connecticut
| Pages | 64 |
| Publication year | 2021 |
66 CBJ 64. Survey of 1991 Developments in International Law in Connecticut
During 1991, several important changes in Connecticut international law were made by a single public act, entitled "An Act Concerning International Obligations and Procedures"; (fn1) the judges of the Superior Court adopted a rule permitting foreign legal consultants to practice in Connecticut; (fn2) the United States Senate consented to ratification of the International Wills Convention; (fn3) and there were two significant international law decisions in the courts, one in the Superior Court for the judicial District of Hartford/New Britain at Hartford (fn4) and the other in the federal District Court for the District of Connecticut. (fn5)
International law has a variety of sources. The most obvious is treaties, but international law can be found also in custom, in the general principles of law recognized by civilized nations and in the writings of scholars! International courts, domestic courts and arbitral tribunals create or recognize international law through their decisions. Likewise, the Connecticut General Assembly or the United States Congress may enact rules that codify existing international law or facilitate international transactions. Regardless of how it is made, international law now
affects lawyers who practice in every area of traditional Connecticut law. (fn7)
The Act Concerning International Obligations and Procedures (the "1991 Omnibus Act") (fn8) made important changes in several areas of Connecticut law.
A. Hague Convention on Service of Process Abroad
Section 1 of the 1991 Omnibus Act concerns the service of process abroad, a problem encountered whenever a defendant is not subject to service within the United States. The statute deals only with state court procedure, but the same problem occurs in the federal courts: a proposed amendment to Rule 4 of the Federal Rules of Civil Procedure deals with the same point. (fn9)
The United States has been a party to the Hague Convention on the Service of Process Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the "Service Convention") (fn10) since August 24, 1967. This is a multilateral convention drafted by the Hague Conference on Private International Law, to which more than twenty-seven countries currently adhere. When the United States became a party, it was not considered necessary to enact implementing legislation. However, several Connecticut "long arm" statutes conflicted with the Service Convention. (fn11)
One of the purposes of the Service Convention was to eliminate service of process on a governmental official as adequate service of process outside the country in which that official is based. (fn12) However, exactly that procedure was required by such Connecticut laws as General Statutes Section 33-411, governing service of process on foreign corporations. Under that section, if, according to the records of the Secretary of the State, a foreign corporation has failed to maintain an agent for service of process in the state or if the agent cannot, with reasonable diligence, be found at the address shown on the Secretary of the State's records, then service of process is to be made by delivery to the Secretary of the State and by mailing a copy to the corporation at its last known address. (fn13)
Similarly, General Statutes Section 52-57(d) provides that, if none of the partners of a partnership is a resident of Connecticut, service of process may be made by delivery to the Secretary of the State and mailing to the last known address of every partner named in the writ who is not personally served. General Statutes Section 52-59b(c) goes further, providing a party within the "long arm" jurisdiction of Connecticut (fn14) is deemed to have appointed the Secretary of the State as his agent f or service of process. General Statutes Section 52-62(a) provides that any non-resident of Connecticut who "causes a motor vehicle to be used or operated upon any public highway or elsewhere in this state" is deemed to have appointed the Commissioner of Motor Vehicles as his agent for service of process. If a Connecticut corporation is involved in a quo warranto case and neither its secretary, its treasurer nor its assistant treasurer is a Connecticut resident, General Statutes Section 52-65 provides that service may be made on the Connecticut Attorney General. This conflict between Connecticut statutes and the Service Convention was a fairly common problem prior to the effective date of the 1991 Omnibus Act.
Changing the reference from service on a particular local official to service by mail would not have solved the problem 'but made it worse, because some countries object very strongly to service by international mail, and may even have legislation making it a criminal act. (fn15)
Rather than amending each conflicting statute, Section I (a) of the 1991 Omnibus Act simply provides:
Notwithstanding any provision of the general statutes relating to the 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. (fn16)
This is technically sufficient and will be entirely sufficient for the practitioner who is sophisticated enough to be aware of it. One of the authors has spoken with the Legislative Commissioners' office about mentioning this provision in the notes to the conflicting sections cited above and we will follow up in encouraging them to do so. If such notes are not included or are included but are not read then the new provision may turn out to be a trap. The ideal solution would be a second bill, amending each conflicting section of the General Statutes, but this task will require careful attention to the distinction between substituted service on out-of-state United States persons, as to whom the existing provisions are acceptable, and substituted service on non-United States persons, as to whom the amendments would insert rules consistent with the Service Convention.
Section I (b) provides that if service cannot be made under the applicable treaty or convention within sixty days, (fn17) then the superior court may order an alternative method for service of process. In selecting such alternatives, we hope the court will be sensitive to the concerns of other countries; for example, it would not be appropriate for the court to allow this provision to become a loophole, permitting unrestrained service of process through the mails, particularly in countries where it is a criminal offense to do so.
B. Hague Convention on Taking Evidence Abroad
Foreign countries are often very concerned about American pretrial discovery. The concept of a "fishing expedition" is not only foreign, but frightening. In response, some countries have enacted blocking laws, making it a crime to conduct or to cooperate with foreign discovery that is not conducted through local officials. (fn18) Litigation American style is not only expensive, but also time consuming. In response to these concerns, the Hague Conference on Private International Law drafted a multilateral Convention on the Taking of Evidence Abroad in Civil or Commercial Matters ("Evidence Convention"). (fn19) The United States became a party to the Evidence Convention on August 8, 1972, and more than twenty countries are now parties.
In Societe Nationale Industrielle Aerospatiale v. United States District CoUrt, (fn20) the United States Supreme Court held that a litigant did not need to resort to the Evidence Convention before using the standard discovery techniques of the Federal Rules of Civil Procedure. This decision was almost unanimously
criticized, particularly by governments that are parties to the Evidence Convention. (fn21) Section 2 of the 1991 Omnibus Act responds to this criticism, as does a similar proposed amendment to the Federal Rules of Civil Procedure. (fn22)
Section 2 provides that if an applicable treaty or convention, including, but not limited to, (fn23) the Evidence Convention, provides for discovery outside the United States, the discovery methods agreed to in that treaty are to be employed. If an applicable treaty "renders discovery inadequate or inequitable but does not prohibit additional discovery," then the court may order additional discovery. This might consist of letters of request (sometimes called "letters interrogatory") or other judicial requests for assistance. Appropriate procedural amendments to the Practice Book would be desirable and we hope the courts will be sensitive to the needs and concerns of other countries when allowing additional discovery, not permitting this exception to be used to vitiate the general rule.
C. Unauthorized Practice of Law
Section 3 of the 1991 Omnibus Act modifies the unauthorized practice of law statute (fn24) in Connecticut to make it clear that agents in international commercial arbitrations (fn25) are not practicing law, that is, that a party's agent does not have to be a member of the bar of the place of arbitration. For example, if a Hong Kong corporation and a German corporation agree to arbitrate in Connecticut as the General Assembly has indicated it wants them to do (fn26) they may use their customary legal representatives even though those representatives are not members of the Connecticut bar. (fn27)
D. Foreign Legal Consultante (fn28)
Section 4 of the 1991 Omnibus Act authorizes the Superior Court to regulate foreign legal consultants. (fn29)...
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