Survey of 1999 Developments in International Law in Connecticut

• Publication year: 2021
• Pages: 406

Connecticut Bar Journal Volume 74.

74 CBJ 406. SURVEY OF 1999 DEVELOPMENTS IN INTERNATIONAL LAW IN CONNECTICUT

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SURVEY OF 1999 DEVELOPMENTS IN INTERNATIONAL LAW IN CONNECTICUT

BY HOUSTON PUTNAM LOWRY AND PETER W. SCHROTH

This is the tenth annual article in this series. To date, we have offered substantial commentaries on approximately fifty cases, some thirty of which were decisions of the Connecticut state courts. Most of the others were decisions of the United States District Court for the District of Connecticut or Second Circuit cases arising, in whole or in part, in Connecticut. Depending on how the count is made, we have considered twenty to thirty Connecticut statutes relating to international matters, with service of process, taking of evidence, and enforcement of judgments appearing most frequently, and also considered the corresponding sections of the Practice Book. We have discussed at some length over a dozen international treaties, returning several times to those on service of process, evidence, enforcement of arbitral awards, and child abduction; for the most part, our comments on federal law have been in the context of treaties. We have devoted space also to developments in international alternative dispute resolution, including the arbitration and mediation rules of seven international bodies, to five sets of substantive rules of the International Chamber of Commerce and to UNIDROIT's Principles of International Commercial Contracts.

The overall trend in Connecticut has been increasing familiarity with the international aspects of our law, both in the courts and among the lawyers. This year was no exception, with more new cases in which lawyers briefed the international issues and our courts showed awareness of them in their decisions. The United States Supreme Court is not always so careful addressing international law issues; 1999 was the year in which the Court ignored the equivalent of a temporary restraining order from the International Court of

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Justice, declining to delay the execution of a German citizen long enough to allow the ICJ to hear Germany's claim that the United States was violating its treaty obligations.

The first half of the article reports on several revisions of international rules on arbitration, international trade, and the Torture Convention. The second half discusses selected 1999 judicial decisions.

I. INTERNATIONAL RULES A. Extradition Rules Implementing the Torture Convention

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

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provides that neither the implementing regulations nor the Secretary's decisions thereunder are subject to judicial review.(fn4)

B. International Arbitration

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

1. Stockholm Chamber of Commerce

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.

2. London Court Of International Arbitration

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

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mediation.(fn11)

3. International Bar Association

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

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(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.

4. Inter-American Arbitration Rules

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. §

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306(b), the United States is not bound by any changes in the ICAC rules until the Secretary of State approves them.

C. Incoterms 2000

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.

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However, there are many small changes and clarifications, so careful reference to the new text is strongly advised.

II. CASES(fn18)

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.

A. Service of Process(fn19) 1. Leandres v. Mazda Motor Corp.(fn20)

Plaintiffs alleged that Manuel Leandres was seriously injured by the deployment of an airbag in their 1995 Mazda Proteg, and that his wife, who witnessed this, suffered emotional distress. Defendant Mazda Motor Corporation, a

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Japanese corporation, moved to dismiss for lack of subjectmatter jurisdiction, as a result of...