Connecticut Bar Journal
76 CBJ 217.
SURVEY OF 2000-2001 DEVELOPMENTS IN INTERNATIONAL LAW IN CONNECTICUT
217SURVEY OF 2000-2001 DEVELOPMENTS IN INTERNATIONAL LAW IN CONNECTICUTBY HOUSTON PUTNAM LOWRY(fn*) AND PETER W. SCHROTH(fn**)This survey covers two years, 2000 and 2001. It is the eleventh in this series and the faithful reader will find that a few topics have become established perennials, which is to say that they comprise aspects of international law fairly often at issue in litigated cases in Connecticut. In this article, topics of that sort include the Hague Convention on the Civil Aspects of Child Abduction; the interplay of the Hague Service Convention and Connecticut's long-arm statutes; forum non conveniens; extradition; the Foreign Sovereign Immunities Act; and international arbitration. We report on further developments in some of the cases discussed in previous years, but also on some issues that appear likely to increase in prominence; one of these is electronic commerce. As a consequence of international terrorism, others include habeas corpus and other rights - or lack thereof - of persons who are not United States citizens.
Electronic commerce is necessarily an international matter and, in 1996, the United Nations General Assembly adopted the Model Law on Electronic Commerce proposed by the United Nations Commission on International Trade
218Law (UNCITRAL).(fn1) A large majority of the states have adopted either versions, sometimes variant, of the Uniform Electronic Transactions Act ("UETA"),(fn2) which is generally based on the UNCITRAL Model Law, or rather different statutes of their own invention.(fn3) Congress, expressing concern about the lack of uniformity, acted to preempt the subject by the Electronic Signatures in Global and National Commerce Act, which took effect on 1 October 2002.(fn4) The heart of the Electronic Signatures Act (sometimes called "Esign" or "ESIGN") is this: Notwithstanding any statute, regulation, or other rule of law (other than this title and title II), with respect to any transac-219 tion in or affecting interstate or foreign commerce - (1) a signature, contract, or other record relating to such transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic form; and (2) a contract relating to such transaction may not be denied legal effect, validity, or enforceability solely because an electronic signature or electronic record was used in its formation.(fn5)
The federal act explicitly excludes wills, family law and all of the Uniform Commercial Code except Articles 2 (Sales) and 2A (Leases),(fn6) as well as court orders and documents, cancellation of utility services, notice of default under residential credit and leasing contracts, cancellation of health or life insurance benefits (excluding annuities), product recalls and warnings about hazardous or toxic materials.(fn7) However, federal regulatory agencies are authorized to eliminate any of these exceptions that are within their jurisdiction, by finding, after notice and an opportunity for public comment, that the exceptions are no longer necessary for the protection of consumers.(fn8)
It is clear that Connecticut law was preempted to a considerable extent until the Connecticut UETA took effect on 1 October 2002.(fn9) Because the preemption clause of the federal Electronic Signatures Act was not drafted as well as it might have been, perhaps it can be argued that some uncertainty remains regarding the extent of preemption thereafter, because Connecticut, like most adopting states, did not adopt UETA exactly "as approved and recommended for enactment in all States by the National Conference of Commissioners on Uniform State Laws in 1999. . . ."(fn10) Aside from numerous stylistic changes and some clarifications of wording, and various clauses protecting the interests of the State Librarian and the Public Records Administrator, there is a wholly nonuniform clause establishing the (conclusive?) presumption that
220 an electronic record is not sent to or received by a consumer if the sender of the electronic record is aware that the consumer (1) did not receive the electronic record, or (2) did not receive the electronic record in a manner allowing the record to be opened and read by the consumer. The provisions of this section may not be varied by agreement.(fn11)
The argument might be that these variations are enough to lose the benefit of 15 U.S.C. §7002(a)(1) requiring a court to test each clause of the Connecticut UETA for consistency with the federal Electronic Signatures Act as provided in 15 U.S.C. §7002(a)(2), or less sweepingly, that each clause that deviates from the "approved" version of UETA is subject to the latter test. This point will have to be clarified, either by Congress or in litigation, but we agree with Professor Beard, the Reporter for the Drafting Committee for UETA, that the usual presumption against preemption in fields traditionally regulated by the states(fn12) lends support to the less sweeping approach.(fn13)
Canada's Uniform Electronic Commerce Act,(fn14) which is generally similar to UETA, was adopted in five Canadian jurisdictions in 2000, namely Manitoba, Nova Scotia, Ontario, Saskatchewan and Yukon.(fn15)
Meanwhile, the European Union has taken a significantly different approach to the same end of authorizing electronic signatures while protecting consumers.(fn16) Both the Electronic Signatures Act and UETA define electronic signatures broad-
221ly and permissively, and allow the parties to determine for themselves what procedures will be used to provide security and authentication of signatures. The EU directive distinguishes between ordinary electronic signatures and "advanced electronic signatures,"(fn17) reserving its major benefits for the latter. Although - contrary to most reports - the EU directive includes a general "not denied solely because electronic" clause corresponding to 15 U.S.C. §7001(a) and §7 of UETA for plain vanilla electronic signatures,(fn18) it strongly encourages the use of "certification-serviceproviders" by requiring that advanced electronic signatures based on qualified certificates satisfy legal requirements to the same extent as handwritten signatures and be admissible in evidence.(fn19) Authentication by a certification-serviceprovider outside the EU will be legally recognized in the EU only if: (a) the certification-service-provider fulfils the requirements laid down in this Directive and has been accredited under a voluntary accreditation scheme established in a Member State; or (b) a certification-service-provider established within the Community which fulfils the requirements laid down in this Directive guarantees the certificate; or (c) the certificate or the certification-service-provider is recognized under a bilateral or multilateral agreement between the Community and third countries or international organizations.
If, as expected, most European businesses choose to recognize only certified signatures, there will be an important
222 practical difference between the systems used in North America and in Europe.
International Alternative Dispute Resolution
American Arbitration Association
The American Arbitration Association established a European office of its International Center for Dispute Resolution in Dublin in June 2001 and amended its international arbitration rules effective 1 November 2001.(fn20) In the last few years, the AAA has become a serious rival(fn21) to the International Chamber of Commerce and the London Court of International Arbitration.(fn22) Practitioners no longer look parochial when they suggest the AAA administer an international arbitration, whether under its own rules or those of UNCITRAL.(fn23)
ICANN and Domain Name Disputes
Until recently, second-level Internet domain names
223 (the part just before a first-level suffix, such as "com" or "org") were allocated and administered by Network Solutions, Inc. under a contract with the National Science Foundation.(fn24) In 1998, the Department of Commerce(fn25) replaced NSI with the Internet Corporation for Assigned Names and Numbers (ICANN), as set forth in the "White Paper" of June 1998.(fn26) ICANN established a "Uniform Domain Name Dispute Resolution Policy" (UDRP) in October 1999.(fn27) While the effective date of the policy varies depending on who is the domain name registrar,(fn28) the policy is now in effect for all registrars under the NSI domains, which are about twothirds of all those in the world.(fn29) Country code top level domains (e.g., DE, UK) are not covered by the UDRP.
In contrast to NSI's procedures - and explicitly rejecting the position of the World Intellectual Property Organization
224 (WIPO)(fn30) - ICANN does not allow a trademark holder to keep the domain name matching its trademark on hold during the dispute resolution process and challenges to existing domain names by the holders of similar trademarks are allowed only on the basis of an assertion of "bad faith"(fn31) on the part of the registrant. The UDRP and ICANN's implementing rules(fn32) are imposed by requiring registrants to sign a contract agreeing to a form of on-line arbitration,(fn33) but are only semi-mandatory, because either party can nevertheless file a lawsuit before, during or after the proceedings. It is ...