Survey of 2000-2001 Developments in International Law in Connecticut – 76 Connecticut Bar Journal 217 (2002)

Survey of 2000-2001Developments in International Law in Connecticut

BY 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  Law (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 transaction 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 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 broadly 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 practical difference between the systems used in North America and in Europe.

      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)

      Until recently, second-level Internet domain names (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 (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 not at all clear that the courts will give deference to an arbitrator’s decision under the UDRP.(fn34) Arbitration under the UDRP is administered not by ICANN, but by organizations selected by it, namely WIPO’s Arbitration and Mediation Center,(fn35) the National Arbitration Forum(fn36) and the CPR Institute for Dispute Resolution.(fn37) (Originally, eResolution was in the list, but it decided for respondents so much more frequently than the others did that it got little business from forum-shopping complainants, and this led to its bankruptcy at the end of 2001.(fn38))

      The focus of this system is said to be “cybersquatting”: “It was designed to provide a cheap and quick way to resolve the easiest cases.”(fn39) Its first case, filed one day after the UDRP took effect on 1 December 1999, involved just that. Michael Bosman registered the domain “worldwrestling federation. com,” paying $60, then immediately offered to sell it to the World Wrestling Foundation for $1000. Instead, the WWF filed a claim under the UDRP in WIPO’s Arbitration and Mediation Center; the resulting decision (of a single arbitrator) in favor of the WWF became the first decision under the new regime.(fn40) Taking a Connecticut case as a typical example of a great many, in Guinness UDV North America v. Lewis,(fn41) a Connecticut corporation won a default decision that the (non)respondent had registered in bad faith the domain name “smirnoffbar.com,” which was found confusingly similar to the complainant’s many registered trademarks consisting of or including the word “Smirnoff.”

      An analysis of the first year’s cases found that “Challengers are the big winners under the UDRP,”(fn42) winning over 80 – of the cases that proceeded to decision and an even larger percentage overall, because 34 – of the respondents defaulted.(fn43) The overwhelming success of the challengers may not, however, be due entirely to the merits of their claims: consider, for example, that the respondent has only twenty days from the commencement of the proceeding to respond,(fn44) and that the attachments to the complaint are sent by mail, not electronically.(fn45) The system has met harsh criticism(fn46) and some consider it in need of reform.(fn47) It is clear at least that it was never meant for the seriously disputed cases(fn48) where courts and lawyers will not be displaced by ICANN’s “small claims court.” Nevertheless, the UDRP has handled “garden variety” cases well and with dispatch.

 

      For these two years, we report on decisions about, among other things, the Vienna Convention on Consular Relations, the Hague Child Abduction Convention, the Hague Convention on Service of Process Abroad, the Hague Evidence Convention, forum non conveniens, the status of treaties with Hong Kong, deportation to China and compelling international arbitration.

Basic Respect for International Law: Germany v. United States

(fn50) in which the United States Supreme Court decided to ignore an instruction from the International Court of Justice(fn51) that the execution of Walter LaGrand, a German national, be stayed long enough to permit an ICJ hearing on Germany’s claim of a violation of Article 36 of the Vienna Convention on Consular Relations (“VCCR”).(fn52) As we noted then,(fn53) Germany – unlike Paraguay, in an earlier case with some similarities(fn54) – did not let the matter end with the death of Mr. LaGrand. The Counter-Memorial submitted on 27 March 2000 by the United States(fn55)

admitted that the competent authorities of the State of Arizona did not inform Walter and Karl LaGrand “without delay” that they could request that a German consular post be notified of their arrest and detention, as required by Article 31(1)(b) of the Convention. The United States of America bears responsibility for such non-performance of U.S. obligations under the Convention by Arizona. Accordingly, the United States acknowledges that, as a result of the failure to inform Walter and Karl LaGrand of their right to consular notification, there was a breach of a legal duty owed by the United States to the Federal Republic of Germany under the Vienna Convention.(fn56)

The United States has apologized to Germany for this breach, and is taking extensive measures seeking to avoid any recurrence. In relation to Germany’s first submission, the United States does not contest the Court’s jurisdiction under the Optional Protocol(fn57) to enter a judgment regarding this acknowledged breach of Article 36(1)(b).(fn58)

      Nonetheless, the United States asserted that Germany was not prejudiced by the violation of this duty, because the LaGrand brothers, who had grown up in the United States, had no ties with Germany;(fn59) because the German consul would not have been likely to take effective steps to help them;(fn60) and because such evidence as the lawyers that might have been provided by the German consul might have offered in mitigation would not have been sufficient to persuade the court not to impose the death penalty.(fn61) The United States submitted that it had already apologized to Germany and that nothing more was either appropriate or within the power of the World Court.(fn62) Amazingly, the United States went on to assert that it had complied with the ICJ’s order. As to the first paragraph, which reads:

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,

The United States asserted that the word “should” did not create binding legal obligations, as words such as “shall” or “must” would have.(fn63) As to the second paragraph, which reads “The Government of the United States of America should transmit this Order to the Governor of the State of Arizona,” the United States asserted that it had complied in full by providing a copy to the Governor.(fn64) The assertion that the United States, because of its federal system, has no power over the actions of a state leaves the previously mentioned admission that the “United States of America bears responsibility for such non-performance of U.S. obligations under the Convention by Arizona” oddly hollow, but seems consistent with the position that no more than a formal apology can ever be required.

      In these circumstances, the Court’s decision on the merits, (fn65) issued on 27 June 2001, is a model of polite restraint. The Court ruled on four main points. First, it held that the United States violated the VCCR by failing (for ten years) to give the required prompt notice of consular rights:

It is immaterial for the purposes of the present case whether the LaGrands would have sought consular assistance from Germany, whether Germany would have rendered such assistance, or whether a different verdict would have been rendered. It is sufficient that the Convention conferred these rights, and that Germany and the LaGrands were in effect prevented by the breach of the United States from exercising them, had they so chosen.(fn66)

      Second, it held that the right was not only a right of Germany as a State party to the VCCR, but also an individual right of Walter LaGrand:(fn67)

The clarity of these provisions, viewed in their context, admits of no doubt. . . . Based on the text of these provisions, the Court concludes that Article 36, paragraph 1, creates individual rights, which, by virtue of Article I of the Optional Protocol, may be invoked in this Court by the national State of the detained person. These rights were violated in the present case.(fn68)

      The Court found it unnecessary, however, to decide on Germany’s claim that this right was not only an individual right, but a human right.(fn69)

Breard v. Greene,(fn70) Germany v. United States(fn71) and American criminal procedure in general:

In this case, Germany had the right at the request of the LaGrands “to arrange for [their] legal representation” and was eventually able to provide some assistance to that effect. By that time, however, because of the failure of the American authorities to comply with their obligation under Article 36, paragraph 1 (b), the procedural default rule prevented counsel for the LaGrands to effectively challenge their convictions and sentences other than on United States constitutional grounds. As a result, although United States courts could and did examine the professional competence of counsel assigned to the indigent LaGrands by reference to United States constitutional standards, the procedural default rule prevented them from attaching any legal significance to the fact, inter alia, that the violation of the rights set forth in Article 36, paragraph 1, prevented Germany, in a timely fashion, from retaining private counsel for them and otherwise assisting in their defence as provided for by the Convention. Under these circumstances, the procedural default rule had the effect of preventing “full effect [from being] given to the purposes for which the rights accorded under this article are intended”, and thus violated paragraph 2 of Article 36.(fn72)

      Fourth, the Court considered a point on which neither it nor its predecessor, the Permanent Court of International Justice, had ever ruled explicitly,(fn73) namely the legal effects of orders made under Article 41 of its Statute. This article reads as follows in its French and English versions:

1. La Cour a le pouvoir d’indiquer, si elle estime que les circonstances l’exigent, quelles mesures conservatoires du droit de chacun doivent être prises à titre provisoire. 2. En attendant l’arrêt définitif, l’indication de ces mesures est immédiatement notifiée aux parties et au Conseil de sécurité. 1. The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party. 2. Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and to the Security Council.

      Observing that “two texts . . are not in total harmony,”(fn74) and that neither its Statute nor the Charter of the United Nations indicated how it should proceed in such a case, the Court turned for guidance to the Vienna Convention on the Law of Treaties,(fn75) “which in the view of the Court . . . reflects customary international law.”(fn76) Articles 31-33 of this Convention(fn77) set forth the rules for interpretation of treaties, including specific rules (in Article 33) for treaties that are equally authentic in two or more languages. The applicable provision was paragraph 4 of Article 33, which says that “when a comparison of the authentic texts discloses a difference of meaning which the application of articles 31 and 32 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted”:

102. The object and purpose of the Statute is to enable the Court to fulfil the functions provided for therein, and in particular, the basic function of judicial settlement of international disputes by binding decisions in accordance with Article 59 of the Statute. The context in which Article 41 has to be seen within the Statute is to prevent the Court from being hampered in the exercise of its functions because the respective rights of the parties to a dispute before the Court are not preserved. It follows from the object and purpose of the Statute, as well as from the terms of Article 41 when read in their context, that the power to indicate provisional measures entails that such measures should be binding, inasmuch as the power in question is based on the necessity, when the circumstances call for it, to safeguard, and to avoid prejudice to, the rights of the parties as determined by the final judgment of the Court. The contention that provisional measures indicated under Article 41 might not be binding would be contrary to the object and purpose of that Article.

103. A related reason which points to the binding character of orders made under Article 41 and to which the Court attaches importance, is the existence of a principle which has already been recognized by the Permanent Court of International Justice when it spoke of “the principle universally accepted by international tribunals and likewise laid down in many conventions . . . to the effect that the parties to a case must abstain from any measure capable of exercising a prejudicial effect in regard to the execution of the decision to be given, and, in general, not allow any step of any kind to be taken which might aggravate or extend dispute” (Electricity Company of Sofia and Bulgaria, Order of 5 December 1939, P.C.I.J, Series A/B, No. 79, p. 199).

Furthermore measures designed to avoid aggravating or extending disputes have frequently been indicated by the Court. They were indicated with the purpose of being implemented [6 citations omitted].(fn78)

Having reached this conclusion, the Court considered a review of the preparatory work on Article 41 of its Statute to be unnecessary,(fn79) but it did the review anyway,(fn80) finding nothing inconsistent with its conclusion that its preliminary orders are binding. Finally, the Court considered Article 94 of the United Nations Charter,(fn81) finding that this provision could be read either as itself making Article 41 order binding or as merely not preventing them from being binding.(fn82) “Thus, the Court has reached the conclusion that orders on provisional measures under Article 41 have binding effect.”(fn83)

The remainder of the Court’s opinion made short work of the assertions that the United States had fulfilled its obligations under the VCCR:

The Court observes . . . that the mere transmission of its Order to the Governor of Arizona without any comment, particularly without even so much as a plea for a temporary stay and an explanation that there is no general agreement on the position of the United States that orders of the International Court of Justice on provisional measures are non-binding, was certainly less than could have been done even in the short time available. . . .(fn84)

It is also noteworthy that the Governor of Arizona, to whom the Court’s Order had been transmitted, decided not to give effect to it, even though the Arizona Clemency Board had recommended a stay of execution for Walter LaGrand. . . .(fn85)

[I]t would have been open to the Supreme Court, as one of its members urged, to grant a preliminary stay, which would have given it “time to consider, after briefing from all interested parties, the jurisdictional and international legal issues involved . . .”(fn86)

The review of the above steps taken by the authorities of the United States with regard to the Order of the International Court of Justice of 3 March 1999 indicates that the various competent United States authorities failed to take all the steps they could have taken to give effect to the Court’s Order. The Order did not require the United States to exercise powers it did not have; but it did impose the obligation to “take all measures at its disposal to ensure that Walter LaGrand is not executed pending the final decision in these proceedings . . .”. The Court finds that the United States did not discharge this obligation.

Under these circumstances the Court concludes that the United States has not complied with the Order of 3 March 1999.(fn87)

      Fifth, and finally, the Court, taking “note of the fact that the United States repeated in all phases of these proceedings that it is carrying out a vast and detailed programme in order to ensure compliance by its competent authorities at the federal as well as at the state and local levels with its obligation under Article 36 of the Vienna Convention,”(fn88) declined to make further orders to the same end. However:

The Court considers in this respect that if the United States, notwithstanding its commitment referred to in paragraph 124 above, should fail in its obligation of consular notification to the detriment of German nationals, an apology would not suffice in cases where the individuals concerned have been subjected to prolonged detention or convicted and sentenced to severe penalties. In the case of such a conviction and sentence, it would be incumbent upon the United States to allow the review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth in the Convention.(fn89)

      Treaties duly ratified are part of the supreme law of the land, binding on, among others, the Supreme Court of the United States and state governors. As to the VCCR, a duly ratified treaty(fn90) makes the jurisdiction of the International Court of Justice compulsory and its decisions conclusive. As a result, the rights set forth in the VCCR are rights of each individual defendant who is a national of a foreign State party to the VCCR and those rights cannot be lost by a failure to invoke them on a timely basis if that failure is a result of a violation by the United States – or any state or political subdivision – of the VCCR. In substance, the International Court of Justice has overruled the decisions of the United States Supreme Court in Breard v. Greene(fn91) and Germany v. United States.(fn92) We hope that the Supreme Court will have an opportunity to recognize this soon; meanwhile, other courts in which VCCR questions may arise should (i.e., must) apply the treaty, disregarding contrary positions of overruled Supreme Court decisions and the Department of State.(fn93)

 

      A perennial topic in these surveys is the parent who takes a child to another country in the hope of a more favorable custody decision than is expected from the courts where the child has been living.(fn95) The general rule, with only a few, narrow exceptions, is that the child must be returned to the jurisdiction of the child’s habitual residence immediately before the abduction. This is clear in Connecticut’s Uniform Child Custody Jurisdiction Act,(fn96) the federal Child Abduction Remedies Act(fn97) and the Hague Convention on the Civil Aspects of International Child Abduction (the “Child Abduction Convention”).(fn98)

      Allegedly to escape the violence of her husband, Marthe Dubois used forged documents to abduct her daughter, then six years old, and her son, then two, from France to the United States. The husband, Felix Blondin, filed a timely action in the Southern District of New York for the children’s return to France under the Child Abduction Convention. In such circumstances, the Convention requires the return of the children unless one of the four(fn100) narrow exceptions set forth in articles 12, 13 and 20(fn101) applies:

Two of those exceptions may be established only by “clear and convincing evidence” – either that “there is a grave risk that [the child’s] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation,” pursuant to Article 13(b) of the Convention, or that return of the child “would not be permitted by the fundamental principles . . . relating to the protection of human rights and fundamental freedoms,” pursuant to Article 20. . . . In contrast, the other two exceptions to the presumption of repatriation need only be established by a preponderance of the evidence – either that judicial proceedings were not commenced within one year of the child’s abduction and the child is well-settled in the new environment, pursuant to Article 12 of the Convention, or that the plaintiff was not actually exercising custody rights at the time of the removal, pursuant to Article 13(a) of the Convention.(fn102)

,(fn103) the District Court refused to return the children to France, on the basis of paragraph 13(b)’s “grave risk” rule. In Blondin II,(fn104) the Second Circuit vacated and remanded for further proceedings to determine whether “mitigating arrangements” could be made that would enable the children to be returned safely to France. In Blondin III,(fn105) the District Court, relying heavily on the undisputed testimony of the late Dr. Albert J. Solnit(fn106) to the effect that no mitigating arrangements could be sufficient to prevent “an almost certain recurrence of traumatic stress disorder on returning to France because they associate France with their father’s abuse and the trauma they suffered as a result,”(fn107) again refused to allow them to be sent back.

, the Second Circuit affirmed, holding that the children need not be returned to France. In considering this decisions’s value as a precedent, however, it is important to note that the Court of Appeals applied a “clearly erroneous” standard to the District Court’s findings of fact and, even so, commented several times on “the particular and unusual circumstances present in this case – in which the only expert testimony in the record supports the District Court’s court’s conclusions and judgment. . . .”(fn108)

      On points of law, however, the Court of Appeals reviewed de novo. Three of its holdings are of particular interest. First, “In cases of serious abuse, before a court may deny repatriation on the ground that a grave risk of harm exists under Article 13(b), it must examine the full range of options that might make possible the safe return of a child to the home country.”(fn109) Second, although, under Article 12 of the Child Abduction Convention, evidence that the child is “settled” in the new environment is considered only if the petition is not brought within one year after the abduction, that evidence may be considered as one of the factors in a “grave risk” analysis under paragraph 13(b). Finally, in a case not based on the unnumbered provision of Article 13(fn110) but on “grave risk,” the Court of Appeals found the District Court “did not clearly err” in considering the views of an eight year- old child as one factor in its “grave risk” analysis.

the Connecticut Supreme Court had an opportunity to examine the Child Abduction Convention and acquitted itself well. Its key holding is similar to, and in part based on, that of the Second Circuit in Blondin IV,(fn112) so we see the two most important appellate courts for Connecticut matters in alignment on the Convention’s requirements.(fn113)

      In an earlier survey,(fn114) we mildly expressed doubts about aspects of the Superior Court’s decision in this case,(fn115) in which the wife unilaterally took the child from the Netherlands to Connecticut, but the Connecticut court refused to order his return under the Child Abduction Convention. The Connecticut Supreme Court (and your commentators) agreed that the primary basis for the Superior Court’s decision was sound, namely strong evidence of sexual abuse of the child by his father, which is set out by the court in detail not appropriate for repetition in this publication. The Supreme Court reversed and remanded for further consideration of mitigating safeguards, however, citing and following the Second Circuit’s Blondin IV.(fn116) It held:

that, before a trial court may properly deny a petition for the return of a child under article 13b, it must consider the full panoply of alternative care arrangements and legal safeguards that might facilitate the child’s safe repatriation, as well as the capacity of the home country’s judicial authorities to enforce any such arrangement.(fn117)

      The context for this holding is “two universally recognized principles”: first, the Child Abduction Convention “generally favors repatriation as a means of restoring the preabduction status quo and of deterring parents from crossing international boundaries in search of a more sympathetic forum,”(fn118) and second, “the success of the [Child Abduction] Convention depends, in large part, on a narrow construction of its exceptions.”(fn119) Although the Supreme Court seemed to stop just short of saying the child must be returned whenever that can be done safely, it required specific findings from the trial court negating each possible approach to safe return. For example, “the trial court offered no explanation for why the child should not be returned to Holland in the temporary custody of some appropriate and suitable party, other than the defendant, with adequate guarantees of child protection.”(fn120) In addition to Blondin IV, the Supreme Court cited decisions of the Sixth and Eighth Circuits, the District of New Hampshire and state courts in New Jersey and Ohio as taking generally the same approach.(fn121)

      There is a contrary point of view; for example, one commentator says, “Once grave risk is found, that should be the end of the analysis.”(fn122) We find it difficult, however, to see how this approach can be supported except by a concern that the courts of other countries protect children less well than do our own courts. The approach taken in Blondin IV and Turner v. Frowein requires the trial court to make detailed findings on the adequacy of proposed safeguards, which surely must include all aspects of this concern, but the French and Dutch courts seem inappropriate targets of our contempt. The Child Abduction Convention itself provides the standard for this inquiry: “The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.”(fn123)

(fn124) a case that is a bit unusual in that no court order was required to bring the child back to the United States and, therefore, the Child Abduction Convention was not applied. It played a major role, nevertheless. After an argument between the parents, the father told the mother he was taking their child for a haircut after school, but instead left Connecticut and “hid with Eric in Florida until they were ultimately found through a law enforcement investigation initiated by Mrs. Jones.”(fn125) It was later discovered that, during this time, the father had taken the child to Israel and attempted to obtain Israeli citizenship for both, an effort that was stymied by the Israeli requirement of the mother’s consent. The Connecticut court was unimpressed by the father’s assertion that this was to fulfill his own father’s dying wish, noting that Mr. Jones had established a Swiss bank account and obtained from his Israeli lawyer a list of the countries that are parties to the Child Abduction Convention.(fn126) “People who are seeking citizenship for sentimental purposes only do not discuss the country signatories of the Hague Convention on Child Abduction with an attorney.”(fn127)

      Judge Munro awarded sole custody to the mother and imposed several conditions on unsupervised visits with the father, including surrender of his passport to the mother’s attorney during each visit and a permanent order “that during Eric’s minority, only his mother shall be the holder of his passport, and no new passport or visa should be issued for Eric unless she originates the application.”(fn128)

      The Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters (the “Hague Service Convention”)(fn129) is binding in Connecticut as a treaty to which the United States is a party; in addition, section 52-59d of the General Statutes provides:

Service of process outside country to be in accordance with treaty or convention or court order.

      (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 and the related Practice Book section 11-8(fn130) (formerly 202A) have figured in Connecticut litigation almost every year since their adoption and have therefore been discussed in some detail in our previous surveys.(fn131)

Forlano v. Ho,(fn132) plaintiff Ralph Forlano alleged that he was injured in a three-car accident in Hamden. The police report stated that defendant Dung Sau Ho was carrying an Ontario driver’s license and listed her state as Ontario. However, it also gave her address as “1700 Dixwell Avenue, Hamden, Connecticut,” which turned out to be a Chinese restaurant. The deputy sheriff’s affidavit reported that Ms. Ho was not located at the restaurant and that he was unable to establish a residence for her. He therefore served the Commissioner of the Department of Motor Vehicles pursuant to section 52-63 of the General Statutes and mailed a copy of the writ, summons and complaint to Ms. Ho at the restaurant’s address. Ms. Ho learned of the matter in some unspecified way and filed a motion to dismiss for lack of personal jurisdiction based on the insufficiency of service under section 52-63.

      Judge Jones began by noting that section 52-63 “does not apply to defendant Ho in as much as she does not possess a valid Connecticut drivers license. . . .”(fn133) After finding “that the plaintiff was aware and was placed on notice that defendant Dung Sau Ho did not reside in Connecticut, but was a resident of Ontario, Canada,”(fn134) he referred to section 52-59d and held that the Hague Service Convention required service to be made on the Central Authority designated by Canada, namely the Ministry of the Attorney General in Ontario.(fn135) Defendant Ho’s motion to dismiss was therefore granted.

      A frequent issue, in Connecticut and elsewhere, has been whether the specific procedures mandated by Articles 2 – 7 of the Hague Service Convention can be avoided if the target country has not objected, by sending process through the mail. This argument is based on the Convention’s preservation, in Article 10(a), of “the freedom to send judicial documents, by postal channels, directly to persons abroad.”(fn136) Perhaps the issue is best understood as a conflict between seeking to carry out the intent of the Convention and seeking to get by with the minimum tolerated by a strict interpretation of its words. It should be clear that we tend toward the former, considering it inappropriate to interpret a treaty in the tradition of “statutes in derogation of the common law” or as if it were the definition of a crime and the plaintiff in a civil action were the accused.

      In the period under review, there were two Connecticut decisions on this issue. In the first, Hospitality Systems v. Oriental World Trading,(fn137) the defendant, “a foreign corporation maintaining a principal place of business in Hong Kong,”(fn138) had an office and an employee, Jay Krokow, in Stamford. Mr. Krokow’s job was to solicit purchase orders from customers in the United States, which he forwarded to Hong Kong for review and acceptance there. Mr. Krokow also negotiated, on defendant’s behalf, a contract with plaintiff David P. Hoyt and plaintiff Hospitality Systems, Inc., a New Hampshire corporation of which Mr. Hoyt was the sole shareholder, relating to business development by Mr. Hoyt. In this suit, Mr. Hoyt and his corporation claim breach of that contract in the form of failure to pay agreed commissions.

      The defendant moved to dismiss for lack of personal jurisdiction and insufficient service of process. As to jurisdiction, the plaintiffs relied on Connecticut General Statutes §33- 929(e), which makes a foreign corporation that transacts business in violation of §33-920 subject to suit in Connecticut on any cause of action arising out of that business. Subsection 33-920(a) requires a foreign corporation to obtain a certificate of authority from the Secretary of the State before it transacts business here and the defendant did not obtain the certificate. However, “transact business” is a term of art in Connecticut(fn139) and subsection (b)(fn140) excludes eleven categories of what might otherwise be thought to fall within its plain meaning, including “transacting business in interstate commerce.” Subsection (b) starts with the words “among others” and sub-section (c) adds, “The list of activities in subsection (b) of this section is not exhaustive.”

      Given the statutory tilt toward finding that a given activity does not constitute “transacting business,” it was easy for Judge Karazin to find that Mr. Krokow’s work fell within the exception of subsection (b)(6), “soliciting or obtaining orders, whether by mail or through employees or agents or otherwise, if the orders require acceptance outside this state before they become contracts.” The court went on to point out that §33-929(e) also requires that the cause of action have arisen out of the business transacted, but the plaintiffs’ claim of breach of contract did not arise out of Mr. Krokow’s solicitation of orders. No one appears to have suggested that the cause of action arose, in part, out of Mr. Krokow’s negotiation of the contract that was alleged to have been breached, but we doubt both that this was an activity requiring a certificate of authority under §33-920 and that a cause of action for breach of contract ordinarily arises out of the negotiation of the contract.

      As a separate ground for dismissal, the defendant asserted, and the court agreed, that service of process by registered mail did not comply with the Hague Service Convention, as required by §52-59d of the General Statutes.(fn141) Judge Karazin correctly noted(fn142) that some courts outside Connecticut have interpreted Article 10(a)’s provision on “the freedom to send judicial documents, by postal channels, directly to persons abroad”(fn143) as allowing service by registered mail if the country to which it is sent has not objected; he could have added a decision of the Connecticut Federal District Court,(fn144) which we noted two years ago.(fn145) However, he followed the better rule, citing several holdings in Connecticut state courts that service abroad by registered or certified mail is not compliance with the Hague Service Convention.(fn146)

Bednarsky v. Rose Wreath & Tree,(fn147) one of the defendants was Big Timber Express Trucking & Logging, Ltd., described as a Canadian corporation. The writ, summons and complaint were served on that defendant by certified mail, return receipt requested, to its agent in Canada. The defendant moved to dismiss for insufficiency of service of process under section 52-59d and the Hague Service Convention. Although the parties agreed that service of process was governed by the Convention, the plaintiff argued, and Judge Stevens agreed, that Article 10(a) allows service by mail to Canada, which made the following declaration in connection with its accession to the Convention:

II Transmission through postal channels (Article 10, subparagraph a)) A Acceptance Canada does not object to service by postal channels. B Forwarding to other Contracting States Canadian law allows the use of postal channels to serve Canadian documents to persons abroad.(fn148)

      Therefore, Judge Stevens did not find it necessary to consider whether Article 10(a) itself authorizes service by mail: “Assuming arguendo that Article 10(a) itself does not allow for mail service, in this particular case, Canada has consented to and authorized mail service in addition to service through its central authority.”(fn149)

      Our reading of these cases is that Connecticut courts see three categories with regard to service by mail:

– First, some jurisdictions have filed statements expressly objecting to service by mail and such service is therefore invalid in those jurisdictions. According to the State Department’s web site, these are Argentina, China, the Czech Republic, Egypt, Germany, Greece, the Republic of South Korea, Latvia, Lithuania, Luxembourg, Norway, Poland, the Slovak Republic, Sri Lanka, Switzerland, Turkey, Ukraine and Venezuela.(fn150) However, we note that Bulgaria filed its objection to the use of Article 10(a) in 1999; that Mexico objects unless certain apparently difficult conditions are met;(fn151) and that Luxembourg withdrew its objection in 1978.

– Second, some jurisdictions have filed statements expressly allowing service by mail, and such service is therefore acceptable in those jurisdictions. Aside from Canada, the only example of this we found is Cyprus. Some other countries have objected to the methods mentioned in Articles 10(b) and 10(c) in terms that might possibly be read as implying that they do not object to service of process in reliance on Article 10(a), but we do not think such an interpretation should be automatic.

– Third, many jurisdictions have remained silent on the point. As Judge Stevens pointed out, citing six Superior Court decisions, “the judges of the Superior Court have consistently aligned themselves with the . . . line of cases . . . which hold that Article 10(a) merely provides a method for sending subsequent documents after service of process has been obtained.”(fn152) That is, authority in the Connecticut Superior Courts is clearly on the side of what we consider the better view, namely that Article 10(a) does not authorize service of process by mail, unless the target jurisdiction has filed a statement that it does not object.

      2. The Hague Service Convention and Statutes of Limitation

, we reported on “an excellent discussion of the interpretation of Article 10(a) of the Hague Service Convention”(fn153) by Judge Lewis in Cavendish-Pell v. Howell,(fn154) “a ‘garden variety’ lawsuit [that] went awry because the plaintiff failed to take proper steps to effect service of process.”(fn155) The case returned in 2000 as one involving a statute of limitations and, because an oral contract was alleged, the statute of frauds.(fn156) Our interest is the three-year limitation period of section 52-582 of the General Statutes, which, under section 52-590, may be tolled for “the time during which the party, against whom there may be any such cause of action, is without this state . . . except that the time so excluded shall not exceed seven years.” Judge Lewis observed that the “purpose of this statute was to preserve the right of action during the absence of the defendant when it was impossible to serve him with process in an action in personam,” (fn157) quoting two state court decisions, and a decision of the U.S. District Court of Connecticut in which it was held that section 52-590 “preserves a right of action only if the defendant’s absence from the state makes it impossible to obtain personal jurisdiction over him in Connecticut.”(fn158) The defendant argued that it remained possible to serve her under either section 52-59b(a)(4) or the Hague Service Convention, so that the limitation period was not tolled and expired in three years. Although Judge Lewis appears to us to have agreed that this is a correct statement of the law, the defendant’s motion for summary judgment was denied, because she failed to provide sufficient evidence of the facts.

Brown v. Brookville Transport Ltd.,(fn160) which dealt with who is an appropriate corporate office to accept service of process in a foreign country under the Hague Service Convention. In 2001, this case also returned as a statute of limitations matter. (fn161) Plaintiff Antoinette Brown, a New York resident, allegedly was injured in a motor vehicle accident in Connecticut as a result of the negligence of a driver employed by Brookville Transport Limited which is headquartered in New Brunswick, Canada. The accident occurred on 2 October 1994, so that suit had to be commenced by 2 October 1996 under section 52-584 of the General Statutes,(fn162) unless section 52-593a(fn163) applied to allow an additional 15 days. In Brown, the documents were received by the Acting Sheriff for the Judicial District of Fredericton, New Brunswick, on 2 October 1996, then by a deputy sheriff of the Village of Fairvale on 3 October. The deputy sheriff served the defendant on 4 October and executed an Affidavit of Service on 7 October. The deputy’s affidavit failed to specify the date on which service was made, but that information was added in a second affidavit dated 6 December.

      Last minute delivery of the papers to a foreign process server was one of the issues addressed by Judge Melville in Leandres v. Mazda Motor Corp.,(fn164) a more complex case to which we devoted an unusual amount of space in our 1999 Survey.(fn165) There, we complained about section 52-593 in regard to domestic as well as international matters:

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.(fn166)

      As noted above, however, the Canadian deputy sheriff in Brown served the papers promptly, allowing Judge Blue to issue a ringing endorsement of the use, so far as it goes, of section 52-593a in cases of service in a foreign country. He read that section broadly, observing, “The manifest purpose of the statute is to liberalize the statute of limitations with respect to plaintiffs who deliver their papers to the process server at the last minute.”(fn167) In this spirit, it was easy to sweep aside the defendant’s objections that the Acting Sheriff who received the papers on 2 October was not himself the process server (because subsection 52-593a(a) requires only delivery to “the office of any sheriff” and subsequent service within fifteen days(fn168)) and that deputy’s affidavit did not originally specify the date of service (a mere “technical noncompliance” with a rule that is “directory rather than mandatory” (fn169)).

      3. The Hague Service Convention and the Practice Book

(fn170) provides a cautionary tale for Connecticut defense lawyers. There the Canadian defendants asserted, apparently accurately, that the plaintiffs failed to serve them as required by the Hague Service Convention. However, the defendants filed their appearance on 16 June 2000, followed by their special defense raising this point on 8 September. Under Practice Book sections 10-30(fn171) and 10-32,(fn172) “any claim of lack of jurisdiction over the person or improper venue or insufficiency of process or insufficiency of service of process is waived if not raised by a motion to dismiss” filed within thirty days after the filing of an appearance. The plaintiffs’ motion to strike the special defense was therefore granted.

Forum non conveniens Returns to the Connecticut Supreme Court

(fn173) two Australian military Black Hawk helicopters collided in midair in Northern Queensland in 1996. All those killed or injured were Australians. The plaintiffs, who were the injured and the estates of those who died, sued in Connecticut, asserting product liability, negligence and breach of express and implied warranties. Three of the seven defendants – United Technologies Corporation, Raytheon Optical Systems, Inc. and Hoffman Engineering Corporation – were based in Connecticut, while a fourth, ITT Industries, Inc., had substantial operations here. The defendants’ motion to dismiss on the ground of forum non conveniens was denied by the Superior Court,(fn174) although the court found Australia to be an adequate forum and the public interest factors to favor trial in Australia, because the “defendants [had] not overcome the strong presumption of the plaintiffs’ choice of forum”(fn175) by demonstrating that the private interest factors also strongly favored Australia. The Chief Justice then granted the defendants’ petition for an interlocutory appeal to the Connecticut Supreme Court.(fn176) The latter reversed and ordered the case to be dismissed, subject to the agreed conditions that the defendants would

(1) consent to jurisdiction in Australia; (2) accept service of process in connection with an action in Australia; (3) make their personnel and records available for litigation in Australia; (4) waive any applicable statutes of limitation in Australia up to six months from the date of dismissal of this action or for such other reasonable time as may be required as a condition of dismissing this action; (5) satisfy any judgment that may be entered against them in Australia; and (6) consent to the reopening of the action in Connecticut in the event the above conditions are not met as to any proper defendant in this action.(fn177)

      In his opinion denying the motion to dismiss, Judge D’Andrea had quoted Judge Lewis’s remark in Xerox Corp. v. Axel Johnson Energy Development, Inc.:

v. International Playtex, Inc.(fn178)] that granting of a forum non conveniens motion would ever be sustained, particularly in light of the Supreme Court’s reference to modern technological innovations such as jet airplanes, satellites and videotaped depositions. (fn179)

      The Connecticut Business and Industry Association and the New England Legal Foundation saw it that way also, announcing their amicus curiae brief as “Fighting to Preserve the Doctrine of Forum Non Conveniens in Connecticut.”(fn180)

      In this context, the Supreme Court began with a very lengthy quotation from Picketts, stated its agreement that Australia was an adequate forum, noted that the plaintiffs had not challenged the conclusion that the public interest factors favored trying the case in Australia and started in on the hard work of putting a new slant on its prior decision by distinguishing rather than overruling it. The key distinction is that the “defendants in Picketts did not present affidavits from the attending physicians in Canada . . . to show that they were unable to testify in Connecticut.”(fn181) In Durkin, there was a list of 144 witnesses, almost all of whom were current or former military personnel living in Australia, and it was “undisputed that, if the present case were to be tried in Connecticut, the parties would be unable to compel the attendance of unwilling, nonparty witnesses located in Australia.”(fn182) That much is already a dramatic shift in favor of forum non conveniens, but there is more:

[T]he Hague Convention [on the Taking of Evidence Abroad in Civil or Commercial Matters(fn183)] contains a provision(fn184) allowing signatories to opt out of executing letters of request for pretrial discovery of documents. . . . Every signatory to the Hague Convention, with the exception of the United States,(fn185) has invoked article 23 and opted out of executing letters of request. . . . Thus, it appears that if the case were to be tried in Australia, Connecticut would be bound to execute any letters of request originating in Australia, provided that the United States did not decide that its sovereignty would be prejudiced by execution of those letters of request.

. . . On the other hand, if the case were tried in Connecticut, Australia might not execute letters of request from the United States in light of the fact that Australia previously has opted out of executing letters of request under article 23 of the Hague Convention.

      We wonder how seriously to take this point. Could the Supreme Court be offering almost all parties wishing to invoke forum non conveniens as the trump card that foreign litigants can obtain pretrial discovery in Connecticut but Connecticut litigants can’t obtain pretrial discovery abroad? If so, we tend to agree with the part of Justice Katz’s dissent that finds this distinction between United States and foreign civil procedure exaggerated.(fn186) In particular, most of the countries that have filed objections under Article 23 do cooperate in compelling reasonable access to documents and statements of witnesses to be used at trial in United States courts. On the other hand, ordinarily litigants in foreign courts are likely to be prevented by the rules of those courts from using, in their cases in those courts, the fruits of American discovery of a type that would not have been allowed at home.

      John Cheung allegedly engaged in criminal fraud in Hong Kong, including obtaining goods by false promises to pay and issuing bad checks. He fled, by way of Canada, to Connecticut, from which the British government of Hong Kong sought his arrest and extradition in 1997(fn188) and, after the return of Hong Kong to Chinese rule, the Hong Kong Special Administrative Region (“HKSAR”) did so again. Magistrate Margolis certified his extraditability, which would have allowed the State Department to extradite Mr. Cheung to Hong Kong, pursuant to the 1996 Extradition Agreement between the United States and Hong Kong,(fn189) but Mr. Cheung brought a habeas corpus petition in the United States District Court for the District of Connecticut. Judge Dorsey ordered his release, in part on the ground that the government of the HKSAR is not the sort of “foreign government” contemplated by the extradition statute(fn190) and his view that Congress was unlikely to have intended to allow extradition to subsovereigns. The United States appealed.

(fn191) the Court of Appeals for the Second Circuit reversed, with instructions to enter a certificate of extraditability and an order of commitment. The court began its analysis with the political question doctrine, observing that

for most purposes of United States foreign relations, the HKSAR government is the government of Hong Kong because it has been recognized as such by the Executive, but it is a “foreign government” within the meaning of the extradition statute only if the judiciary interprets that term to encompass subsovereigns.(fn192)

      Noting that, when the extradition statute was first enacted in 1848, the United States had extradition treaties only with France and England, but that it “had also ratified hundreds of treaties with Indian tribes or nations,”(fn193) the court said: “If §3184 contains a sovereign nation requirement, that requirement would have to derive from the term ‘foreign country,’ because it cannot be implied [sic] from the word ‘treaty.'”(fn194)

      In other contexts, the words “foreign country” may or may not mean a sovereign.(fn195) Finding the statutory text ambiguous, therefore, the court considered its purpose, noting that the context for this inquiry was the rule that “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains. . . .”(fn196) A review of the sparse legislative history of the extradition statute and a review of the extensive legislative history of the Hong Kong Extradition Agreement confirmed that: “To read a sovereignty requirement into the extradition statute that renders the United States incapable of performing its obligations under the Hong Kong Extradition Agreement would undermine the primary design of the statute.”(fn197)

      This was enough to decide the case, but the court went on to deal firmly with the status of treaties generally:

Cheung argues, and the district court agreed, that enforcement of the Agreement would threaten our system of separation of powers. According to Cheung, an act passed by both houses of Congress and signed by the President cannot be implicitly amended or repealed by a later treaty executed by the President and ratified by the Senate without the participation of the House of Representatives. He contends that a contrary holding would amount to usurpation of Congress’s constitutionally vested legislative authority.

[T]his contention fundamentally miscomprehends the status of treaties in our constitutional scheme. The Supremacy Clause declares the Constitution, federal law, and treaties to be “the supreme Law of the Land.” U.S. Const. art. VI, cl. 2. It is well-established that under the Supremacy Clause a selfexecuting treaty – one that operates of itself without the aid of legislation – is to be regarded in the courts as equivalent to an act of the legislature. . . . The Agreement is self-executing. . . . Thus, contrary to the position of the district court and the petitioner, the Constitution not only allows, but in fact requires, the courts to treat the Agreement as equal to the federal extradition statute, with the goal of harmonizing the two where possible.(fn198)

      Mu-Xing Wang asserts he deserted from the Chinese Army and arranged to be smuggled into the United States by Chinese gangsters called “snakeheads”; when he was unable to pay their full fee of $30,000, they severely beat his brother- in-law; and the robbery of which he was convicted in New Haven Superior Court was of the snakeheads themselves in his desperate effort to pay the debt. The Immigration and Naturalization Service sought, and an immigration judge ordered, his deportation to China as an alien who had entered the United States unlawfully and was ineligible for admission, because of the felony conviction. Mr. Wang appealed this decision to the Board of Immigration Appeals (“BIA”) and asked for political asylum. After more hearings and appeals led to more rejections, he petitioned the United States District Court for the District of Connecticut for a writ of habeas corpus, based principally on the United Nations Convention Against Torture(fn199) and his claim that he would be tortured if returned to China. His petition was denied in Wang v. Ashcroft.(fn200)

      Although by statute only the court of appeals, and not the district court, has jurisdiction to hear a direct appeal of the BIA’s decision,(fn201) the district court held that it had jurisdiction under the general habeas statute, 28 U.S.C. §2241, to consider Mr. Wang’s petition to the extent he claimed to be “in custody in violation of the Constitution or laws or treaties of the United States.” However, the scope of review in such a case is “exceedingly narrow” and the court found the BIA made no error of law, and its position was supported by substantial evidence, in ruling “that petitioner had failed to carry his burden of proving that he would face punishment above and beyond that lawfully imposed [for desertion], or that the punishment he would receive would defeat the underlying purpose of” the Convention Against Torture.(fn202)

      Mr. Wang asserted also that his detention without an opportunity for a bond hearing violated his right to procedural due process. Shockingly,(fn203) the government responded “that petitioner, as an alien who entered this country illegally, [had] no constitutional rights,”(fn204) purportedly relying on the United States Supreme Court’s decision in Zadvydas v. Davis,(fn205) which concerned an alien who had not yet entered the United States. As Judge Goettel pointed out, however, the Supreme Court said just the opposite with respect to aliens already, albeit unlawfully, in the United States:

But once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all “persons” within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent. . . . Indeed, this Court has held that the Due Process Clause protects an alien subject to a final order of deportation, . . . though the nature of that protection may vary depending upon status and circumstance.(fn206)

      On the merits, however, the court found the lack of opportunity for a bond hearing was not a denial of due process, because his removal order was final, he did not dispute his convictions, China had already agreed to accept his return and the government had stated it could remove him within thirty days.

Cortez Bryrd Chips v. Bill Harbert Construction(fn208) were all about Mississippi and Alabama, but the United States Supreme Court based its permissive interpretation of the venue provisions of the Federal Arbitration Act(fn209) in part on the expected effect on the enforcement of international arbitration awards:

Finally, [respondent’s] interpretation would create anomalous results in the aftermath of arbitrations held abroad. Sections 204, 207, and 302 of the FAA(fn210) together provide for liberal choice of venue for actions to confirm awards subject to the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards(fn211) and the 1975 Inter-American Convention on International Commercial Arbitration.(fn212) But reading §§ 9-11 to restrict venue to the site of the arbitration would preclude any action under the FAA in courts of the United States to confirm, modify, or vacate awards rendered in foreign arbitrations not covered by either convention. . . . Although such actions would not necessarily be barred for lack of jurisdiction, they would be defeated by restrictions on venue, and anomalies like that are to be avoided when they can be.(fn213)

Signature Marketing Pty. Ltd v. Slim Print International, LLC,(fn214) the Australian plaintiffs, who manufactured counter and bar mats, entered into a distribution agreement with defendant Slim Print, which was controlled and operated by defendants David McBride, Max Muller and Mayfairs Wholesale Pty. Ltd., the last being a company owned by Mr. Muller and his family. The distribution agreement included an arbitration clause. Following a dispute about Signature’s performance, Slim Print requested that Signature confirm the termination of the distribution agreement; four days later, Messrs. Muller and McBride formed a new company, defendant Promat, LLC, which began selling similar mats from another source. The Australian plaintiffs sued in the U.S. District Court for the District of Connecticut, asserting breach of the distribution agreement and of a duty of good faith and fair dealing, as well as palming off and related claims. The Connecticut defendants Slim Print, Mayfairs, McBride, Muller and Promat moved to stay the case and compel arbitration in Australia, but Magistrate Judge Garfinkel recommended that arbitration be compelled only as to Slim Print, which had signed the distribution agreement, and not as to the defendants who were not parties to it.

 Judge Droney cited Second Circuit decisions(fn215) authorizing estoppel of a signatory from avoiding arbitration when the issues the non-signatory seeks to resolve are intertwined with the signed agreement and stated:

Factors to consider in making this determination include: 1) whether there is a close relationship between the different defendant entities; 2) whether the claims asserted against the non-signatory defendant are closely intertwined with the duties and obligations arising under the agreement containing the arbitration clause; and 3) whether it would be inequitable to permit the signatory to assert the agreement as a basis for bringing suit against the non-signatory, and at the same time allow the signatory to circumvent the arbitration clause within that same agreement.(fn216)

      Finding all three factors to favor estoppel, he gave all five defendants the benefit of the arbitration clause. ____________________
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.

      ** Editor-in-Chief of the Connecticut Bar Journal. Professor, Lally School of Management and Technology, Rensselaer Polytechnic Institute, Hartford. Vice-Chair and former Chair of the Connecticut Bar Association’s Section of International Law and World Peace.

      1 U.N.G.A. Res. 51/162 of 16 December 1996, U.N. GAOR, 85th mtg., U.N. Doc. A/CN.9/SER.A/1996, available at www.uncitral.org/english/texts/electcom/ml-ecomm.htm. According to UNCITRAL:

Legislation based on the UNCITRAL Model Law on Electronic Commerce has been adopted in Australia, Bermuda, Colombia, Ecuador, France, Hong Kong Special Administrative Region of China, India, Ireland, Isle of Mann (Crown Dependency of the United Kingdom of Great Britain and Northern Ireland), New Zealand, Pakistan, Philippines, Republic of Korea, Singapore, Slovenia, the States of Jersey (Crown Dependency of the United Kingdom of Great Britain and Northern Ireland), Thailand, and, within the United States of America, Illinois. Uniform legislation influenced by the Model Law and the principles on which it is based has been prepared in Canada (Uniform Electronic Commerce Act, adopted in 1999 by the Uniform Law Conference of Canada) and in the United States (Uniform Electronic Transactions Act, adopted in 1999 by the National Conference of Commissioners on Uniform State Law) and enacted as law by a number of jurisdictions in those countries.

      2 The Uniform Electronic Transactions Act was adopted in Connecticut 23 May 2002, effective 1 October 2002, by Public Act No. 02-68. The Electronic Records and Signatures Act of 1999, CONN. GEN. STAT. §§1-260 – 1-265, is repealed. Both authors of this article served on the Connecticut Law Revision Commission’s advisory committee on electronic commerce, which considered UETA.

MINN. STAT. ANN. §325L.01 (West 1998); UTAH CODE ANN. §46-4-101 (1996).

      4 Pub.L. No. 106-229, 114 Stat. 464 (2000), codified at 15 U.S.C. §§7001- 7006, 7021, 7031. As to the records retention required by federal or state law, the Act took effect 1 March 2001, or, in certain cases of pending rulemaking, 1 June 2001. There are also special rules for the effective date with respect to certain federally guaranteed or insured loans and student loans. 15 U.S.C. §7001(b). There are dozens of recent law review articles discussing the Electronic Signatures Act and the Uniform Electronic Transactions Act (note 2 supra). We liked Gregory E. Maggs, Regulating Electronic Commerce, 50 AM. J. COMP. L. 665 (supp.) (2002); Lance C. Ching, Electronic Signatures: A Comparison of American and European Legislation, 25 HASTINGS INT’L & COMP. L. REV. 199 (2002); Shea C. Meehan & D. Benjamin Beard, What Hath Congress Wrought: E-sign, the UETA, and the Question of Preemption, 37 IDAHO L. REV. 389 (2001); and Patricia Brumfield Fry, A Preliminary Analysis of Federal and State Electronic Commerce Laws (2001), available at www.nccusl.org/nccusl/uniform act_articles/uniformacts-article-ueta.asp.

      6 15 U.S.C. §7003(a). Compare §3(b) of the Connecticut UETA, supra note 2, which does not include the family law exception, but does have a broad exception for land transactions.

      7 15 U.S.C. §7003(b). Compare §3(c)(2) of the Connecticut UETA, supra note 2.

note 2, §19(b). In substance, this merely makes explicit a point that is clearly implicit in E-sign, which may be an argument against preemption.

Cipollone v. Liggett Group Inc., 505 U.S. 504, 518 (1992).

note 4, at 404-405.

      14 Available at http://www.ulcc.ca/en/us/index.cfm?sec=1&sub=1u1.

See www.ulcc.ca/en/us/index.cfm?sec=3.

      16 Directive on a Community Framework for Electronic Signatures, Council Directive 99/93/EC, 2000 O.J. (L13) 12. See generally Ching, supra note 4. This is only one of a series of interrelated directives, which include Directive on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data, Council Directive 95/46/EC, 1995 O.J. (L281) 31; Directive on the Legal Protection of Databases, Council Directive 96/9/EC, 1996 O.J. (L77) 20; Directive on the Protection of Consumers in Respect of Distance Contracts, Council Directive 97/7/EC, 1997 O.J. (L144) 19; and Directive on Certain Legal Aspects of Information Society Services, in Particular Electronic Commerce, in the Internal Market, Council Directive 2000/31/EC, 2000 O.J. (L178) 1.

      17 ‘advanced electronic signature’ means an electronic signature which meets the following requirements:

(c) it is created using means that the signatory can maintain under his sole control; and

(d) it is linked to the data to which it relates in such a manner that any subsequent change of the data is detectable

      Art. 2, ¶2, Directive on a Community Framework for Electronic Signatures, supra note 16.

      20 The current version is available in English, Chinese, Portuguese and Spanish on the American Arbitration Association’s web site, www.adr.org, in the “Rules/Procedures” section, but the exact URL for the rules themselves is so absurdly long that this explanation is shorter.

      21 It should be noted also that the Swedish Arbitration Act was amended and modernized in 1999 (SFS 1999:116, effective 1 April 1999, available at www.sccinstitute. com/go.asp?208), and that the Swedish Arbitration Institute, part of the Stockholm Chamber of Commerce, then revised its rules. Rules of the Arbitration Institute of the Stockholm Chamber of Commerce, Adopted by the Stockholm Chamber of Commerce and in force 1 April 1999, available at www.sccinstitute.com/_upload/shared_files/regler/sccrules.pdf.

      22 541 cases were filed during 2000 and 566 during 2001 with the International Chamber of Commerce. See www.iccwbo.org/court/english/right_topics/- stat_2000.asp, www.iccwbo.org/court/english/right_topics/stat_2001.asp. And 147 cases were filed with the London Court of International Arbitration from 1999-2000, suggesting about 70 to 75 were filed in 2000. Meanwhile, 507 cases were filed in 2000 and 649 in 2001 with the American Arbitration Association’s International Center for Dispute Resolution. The ICDR, established in 1996, is already “the largest international commercial arbitral institution in the world,” according to a press release available at www.adr.org/upload/LIVESITE/focusArea/international/ICDRPR_pdf.pdf.

      23 The UNCITRAL Arbitration Rules, G.A. Res. 31/98, adopted in 1976, are available at www.uncitral.org/english/texts/arbitration/arb-rules.htm. The American Arbitration Association’s Procedures for Cases under the UNCITRAL Arbitration Rules as Amended and Effective on September 1, 2000 are among the many documents with absurdly long URLs available from a list of links at www.adr.org under “Rules.”

      24 Before 1984, the domain name system was a single file maintained by Jonathan B. Postel at UCLA. The distributed system used since then was designed by Paul Mockapetris at USC. The Department of Defense had responsibility for the entire system until 1991 when the nonmilitary portion was taken over by the NSF. See generally A. Michael Froomkin, Wrong Turn in Cyberspace: Using ICANN to Route Around the APA and the Constitution, 50 DUKE L.J. 17 (2000).

Statement of Policy on Management of Internet Names and Addresses, 63 Fed. Reg. 31741 (10 June 1998), available at www.ntia.doc.gov/ntiahome/domainname/6_5_98dns.htm. It replaced the very controversial “Green Paper,” A Proposal to Improve Technical Management of Internet Names and Addresses, 63 Fed.Reg. 8826 (20 Feb. 1998).

      27 Available at www.icann.org/udrp/udrp-policy-24oct99.htm.

see Registrar Accreditation: Process, www.icann.org/registrars/accreditation-process.htm.

13 cases where there were split decisions involving 398 names.

242 cases involving 350 names were disposed without decision.

      (The page containing the above is no longer available at www.icann.org)

The Management of Internet Names and Addresses: Intellectual Property Issues: Final Report of the WIPO Internet Domain Name Process (2001), http://wipo2.wipo.int/process1/report/finalreport. html. 

      31 UDRP §4(b) defines proof of “bad faith” as including, “without limitation”:

(1) Evidence that respondent registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or

(2) The domain name was registered in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the registrant has engaged in a pattern of such conduct; or

(3) The domain name was registered primarily for the purpose of disrupting the business of a competitor; or

(4) Using the domain name has intentionally attempted to attract, for commercial gain, Internet users to a web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the web site or location or of a product or service on the web site or location.

      Under UDRP §4(c), the respondent may negate “bad faith” by showing:

(1) Before any notice of the dispute, there was use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or

(2) The individual, business, or other organization registering the name has been commonly known by the domain name, even if there are no trademark or service mark rights; or

(3) The registrant is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue for commercial gain.

      32 Rules for Uniform Domain Name Dispute Resolution Policy, www.icann.org/udrp/udrp-rules-24oct99.htm.

Frequently Asked Questions (FAQs), www.icann.org/general/faq1.htm.

      34 For example, the court declined to do so in Parisi v. Netlearning Inc., 139 F.Supp.2d 745, 752 (E.D. Va. 2001).

      35 Information on the WIPO Arbitration and Mediation Center is available at arbiter.wipo.int/center/index.html.

      36 Information on the National Arbitration Forum is available at www.arbforum.com.

      37 Information on the CPR Institute for Dispute Resolution is available at www.cpradr.org.

      38 The remaining record of a useful news article on eResolution and its bankruptcy can be found in A. Michael Froomkin & Mark A. Lemley, ICANN and Antitrust, 2003 U. ILL. L. REV. 1, 69 n. 339. The University of Massachusetts Center for Information Technology and Dispute Resolution maintains some information on cases decided by eResolution panelists that were originally posted at the eResolution site: disputes.org/eresolution/. See infra note 47.

Rough Justice: An Analysis of ICANN’s Uniform Dispute Resolution Policy 6 (Nov. 2000), available at www.acm.org/usacm/IG/https://plclawoffice.com/wp-content/uploads/roughjustice.pdf and http://dcc.syr.edu/miscarticles/https://plclawoffice.com/wp-content/uploads/roughjustice.pdf.

      40 In the Matter of World Wrestling Federation Entertainment, Inc. v. Bosman, WIPO Case No. D99-0001 (14 Jan. 2000), available at arbiter.wipo.int/domains/decisions/html/d99-0001.html.

available at arbiter.wipo.int/domains/decisions/html/2001/d2001-0621.html.

      46 An influential commentator says, “The UDRP is as bad as it is because primary drafting authority was in the hands of groups dominated by trademark partisans who were very, perhaps overly, concerned about cybersquatting.” A. Michael Froomkin, ICANN’s “Uniform Dispute Resolution Policy”: Causes and (Partial) Cures, 67 BROOKLYN L. REV. 605, 716 (2002). See also Elizabeth G. Thornburg, Fast, Cheap, and Out of Control: Lessons from the ICANN Dispute Resolution Process, 6 COMP. L. REV. & TECH. J. 89 (2002); Michael Geist, Fair.com?: An Examination of the Allegations of Systemic Unfairness in the ICANN UDRP (2001), http://aix1.uottawa.ca/~geist/https://plclawoffice.com/wp-content/uploads/geistudrp.pdf. and www.udrpinfo.com/resc/https://plclawoffice.com/wp-content/uploads/fair.pdf.

note 39 at 24, lists seven “RBDs (Really Bad Decisions)” and finds forum-shopping a major problem, with eResolution much more likely than the other fora to find for the respondent.

      48 “The UDRP was designed for, and applies to, straight-forward disputes, where there are rights on one side and no rights or legitimate interests on the other side. It was not designed to accommodate disputes involving interests on both sides, which requires a more extensive procedure, perhaps involving the hearing of evidence and oral arguments.” WORLD INTELLECTUAL PROPERTY ORGANIZATION, THE RECOGNITION OF RIGHTS AND THE USE OF NAMES IN THE INTERNET DOMAIN NAME SYSTEM: REPORT OF THE SECOND WIPO INTERNET DOMAIN NAME PROCESS (2001), available at wipo2.wipo.int/process2/report/pdf/https://plclawoffice.com/wp-content/uploads/report.pdf.

      49 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:

(a) Transatlantic Shiffahrtskontor [sic] GmbH v. Shanghai Foreign Trade Corporation, 204 F.3d 384 (2d Cir. 2000) (defendant entitled to sovereign immunity, because suit not “based . . . upon an act outside the territory of the United States [that] causes a direct effect in the United States,” 28 U.S.C. §1605(a)(2), where alleged act is failure to deposit money into a New York bank account).

(b) Havana Club Holding, S.A. v. Galleon S.A., 203 F.3d 116 (2d Cir. 2000) (trademark expropriated without compensation by Cuban government in 1960 and later sold to plaintiffs cannot be enforced against alleged infringers in the United States).

(c) Bigio v. Coca-Cola Co., 239 F.3d 440 (2d Cir. 2000) (allegation that Coca-Cola acquired or leased property that Egypt earlier expropriated in violation of international law does not plead a violation of the law of nations by Coca-Cola as required for jurisdiction under the Alien Tort Claims Act, 28 U.S.C. §1350; but court has diversity jurisdiction under 28 U.S.C. §1332, because local action doctrine does not apply to action that, though touching on land, is based on a theory other than trespass; act of state doctrine does not preclude this action, especially because current government has repudiated the acts in question, but case remanded for determination whether retention of jurisdiction is consistent with international comity).

(d) Bano v. Union Carbide Corp., 273 F.3d 120 (2d Cir. 2001) (most claims arising out of the 1984 Bhopal disaster are barred by the 1989 settlement, which was approved by the Supreme Court of India; however, district court dismissed without addressing certain common-law claims for environmental damage, so court of appeals remands for benefit of “Judge Keenan’s extensive and intimate familiarity with the Bhopal disaster litigation”). See Union Carbide Corp. v. Union of India, AIR 1990 SC 273; Union Carbide Corp. v. Union of India, AIR 1992 SC 248.

      50 526 U.S. 111 (1999). On the connection between this case and the State of Connecticut, see Houston Putnam Lowry & Peter W. Schroth, Survey of 1999 Developments in International Law in Connecticut, 74 CONN. B. J. 406, 426 n. 71 (2000) (hereinafter “1999 Survey”).

      51 Case Concerning the Vienna Convention on Consular Relations (Germany v. United States of America), No. 104, Provisional Measures, 3 March 1999, www.icjcij.org/icjwww/idocket/igus/igusorder/igus_iorder_19990303.htm.

      52 Vienna Convention on Consular Relations, 24 April 1963, 596 U.N.T.S. 261, 21 U.S.T. 77, entered into force 19 March 1967, entered into force for the United States 24 December 1969. Article 36 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.

      54 In the Case Concerning the Vienna Convention on Consular Relations (Paraguay v. United States of America), No. 99, Order (Provisional Measures), 9 April 1998, www.icj-cij.org/icjwww/idocket/ipaus/ipausorder/ipaus_iorder_090498.HTM, the Court instructed:

The United States should take all measures at its disposal to ensure that Angel Francisco Breard 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. . . .

      However, in Breard v. Greene, 523 U.S. 371 (1998), the Supreme Court allowed the execution to be carried out immediately (he was executed on 14 April 1998), on the grounds that Breard had failed to raise the treaty issue in the lower court and that there was no showing that raising it would have changed the result. Unlike Germany, Paraguay withdrew its application to the ICJ after the execution of its national. Case Concerning the Vienna Convention on Consular Relations (Paraguay v. United States of America), Order (Discontinuance), No. 99, 10 November 1998, www.icj-cij.org/icjwww/idocket/ipaus/ipausorder/ipaus_iorder_981110.htm.

      55 Case Concerning the Vienna Convention on Consular Relations (Germany v. United States of America), No. 104, Counter-Memorial Submitted by the United States of America, 27 March 2000, www.icj-cij.org/icjwww/idocket/igus/iguspleadings/ iGUS_ipleading_CounterMemorial_US_20000327.htm.

      57 The reference is to the Optional Protocol to the Vienna Convention on Consular Relations Concerning the Compulsory Settlement of Disputes, 24 April 1963, 596 U.N.T.S. 487, 21 U.S.T. 325, entered into force 19 March 1967, entered into force for the United States 24 December 1969. Paragraph 1 reads:

Disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present Protocol.

note 55, paragraph 47.

      65 LaGrand Case (Germany v. United States of America), No. 104, Judgment, 27 June 2001, 2001 I.C.J. 104, 40 ILM 1069 (2001), www.icj-cij.org/icjwww/idocket/igus/igusjudgment/igus_ijudgment_toc.htm.

¶74. This part of the judgment is paragraphs 65-74.

¶101. In the same paragraph, the Court described the issue as involving “divergence between the equally authentic versions of the Statute.”

      75 Vienna Convention on the Law of Treaties, 23 May 1969, entered into force 27 January 1980, 1155 U.N.T.S. 332, 8 I.L.M. 679, available at www.un.org/law/ilc/texts/treaties.htm.

1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:

a. any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty;

b. any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

3. There shall be taken into account, together with the context:

a. any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;

b. any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;

c. any relevant rules of international law applicable in the relations between the parties.

4. A special meaning shall be given to a term if it is established that the parties so intended.

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:

b. leads to a result which is manifestly absurd or unreasonable.

Interpretation of treaties authenticated in two or more languages

1. When a treaty has been authenticated in two or more languages, the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail.

2. A version of the treaty in a language other than one of those in which the text was authenticated shall be considered an authentic text only if the treaty so provides or the parties so agree.

3. The terms of the treaty are presumed to have the same meaning in each authentic text.

4. Except where a particular text prevails in accordance with paragraph 1, when a comparison of the authentic texts discloses a difference of meaning which the application of articles 31 and 32 does not remove, the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted.

note 65, ¶¶102-103.

      81 1. Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.

2. If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.

      93 Thus the Second Circuit’s decision in United States v. De La Pava, 268 F.3d 157 (2d Cir. 2001), issued nearly four months after the decision of the International Court of Justice in the LaGrand case, was plainly wrong if it found “that the Convention created no judicially enforceable individual rights. . . .” 268 F.3d at 164. (Although Judge Cabranes plainly leaned in that direction, we prefer to read his opinion as stopping just short of so finding.) The court joined three other courts of appeals in holding that “the Government’s failure to comply with [the consular-notification] provision is not a basis to dismiss an indictment,” id. at 165, a point that may survive but must no longer be considered authoritative until it has been reexamined in light of the LaGrand decision. However, the holding that Mr. De La Pava cannot persuasively argue that his counsel’s failure to move to dismiss on this ground constituted ineffective assistance of counsel probably survives, because this alleged failure occurred in 1999.

      94 In Diorinou v. Mezitis, 237 F.3d 133 (2d Cir. 2001), courts in New York and Athens issued conflicting custody orders. The Second Circuit affirmed the district court’s order deferring to the Greek court’s decision under the Child Abduction Convention and therefore ordering them to be returned to Greece, even though it was “given pause by some aspects of [the Greek court’s] rulings.” 237 F.3d at 145. In reaching this conclusion, the Second Circuit considered the reasonableness of the Greek court’s decision under the Convention, rather than accepting it automatically, but saw “no basis for declining to defer to the principal ruling in the Greek Hague petition litigation. . . .” 237 F.3d at 146.

note 50, at 423-425; Houston Putnam Lowry & Peter W. Schroth, Survey of 1998 Developments in International Law in Connecticut, 73 CONN.B.J. 349, 360-363 (1999) (hereinafter “1998 Survey”); Houston Putnam Lowry & Peter W. Schroth, Survey of 1995 Developments in International Law in Connecticut, 70 CONN.B.J. 68, 75-76 (1996) (hereinafter “1995 Survey”); Houston Putnam Lowry & Peter W. Schroth, Survey of 1991 Developments in International Law in Connecticut, 66 CONN.B.J. 64, 78-80 (1992) (hereinafter “1991 Survey”).

      98 25 Oct. 1980, TIAS No. 11670, 1343 U.N.T.S. 89, 51 Fed. Reg. 10498, entered into force for the United States 29 April 1988. The text of the Child Abduction Convention is available in the MARTINDALE-HUBBELL LAW DIRECTORY and on line at www.hcch.net/e/conventions/text28e.html. (The first 20 of the Convention’s 45 articles are quoted by the Connecticut Supreme Court in the first footnote of Turner v. Frowein, infra note 111.) For details on the parties to this convention, see 1998 Survey, supra note 95, at 360 n. 41; for the latest changes to this list as well as reservations and so forth, see www.hcch.net/e/status/stat28e.html.

). We mentioned an earlier Second Circuit decision in this case (Blondin v. Dubois, 189 F.3d 240 (2d Cir. 1999) (“Blondin II”)) in the 1999 Survey, supra note 50, but did not report on it, because there was no obvious Connecticut aspect. For a discussion of all four decisions, see Megan Marchick, Note: Blondin v. Dubois, 14 N.Y. INT’L L. REV., No. 2, 159 (2001). We report on it now, because of its importance to the Connecticut Supreme Court’s decision in Turner v. Frowein, infra note 111.

      100 For the sake of completeness, we note that the other parent’s consent could be counted as a fifth defense under Article 13a.

      Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

      The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.

      Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.

      Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that:

      a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or

      b) 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.

      The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

      In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.

 

      The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.

note 99, at 245-246. In this analysis, and at other points in Blondin II and Blondin IV, the Second Circuit cites with approval Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th Cir. 1993) (“Friedrich I”) and Friedrich v. Friedrich, 78 F.3d 1060, 1067 (6th Cir. 1996) (“Friedrich II”).

      103 Blondin v. Dubois, 19 F.Supp.2d 123 (S.D.N.Y. 1998) (“Blondin I”).

      105 Blondin v. Dubois, 78 F.Supp.2d 283 (S.D.N.Y. 2000) (“Blondin III”).

      106 Dr. Solnit is well known as one of the authors of a series of books on child psychiatry. The court cites (238 F.2d at 161) JOSEPH GOLDSTEIN, ANNA FREUD, ALBERT J. SOLNIT & SONJA GOLDSTEIN, IN THE BEST INTERESTS OF THE CHILD (1986). Although Dr. Solnit was Sterling Professor Emeritus at Yale University, we include Blondin IV in this Survey not for that reason, but for the reason stated supra note 99.

at 168. This is a result that is not likely to be obtained frequently, particularly if the opposing party introduces contrary evidence, as the Second Circuit’s footnote 14 (238 F.3d at 165 n. 14) makes clear:

Petitioner’s insistence that . . . evidence [that the child is now settled in the new environment] would be irrelevant in this case may explain why he did not present any evidence at all purporting to cast doubt on Dr. Solnit’s conclusions. In a letter to Judge Chin opposing respondent’s request that the District Court consider such evidence in the context of its “grave risk” analysis, counsel for petitioner wrote: “While the Second Circuit did not rule out the possibility that the fact that a child is well settled in his new location could be relevant if the child is so deeply rooted in the United States that the child’s return would present a grave risk of physical or psychological harm to him or her, implicit in the dicta to that effect is that such would be an exceptional case.” [citation omitted] The problem with petitioner’s reasoning is that respondent presented expert evidence precisely with the aim of proving that this is the exceptional case – that is, that the children are “so deeply rooted in the United States that there is a grave risk that [their] return would expose [them] to . . . psychological harm.” [citation omitted] Once the District Court ruled that such evidence could be presented in the context of Article 13(b), . . . merely asserting that this is not the exceptional case would not suffice to contradict the expert proof that it is – and it would not give us any ground at all upon which to reject a finding based on such proof.

note 99, at 163 n. 11.

      110 In this context, the “unnumbered provision” means the sentence, “The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.” See supra note 101.

      113 “In general, we look to the federal courts for guidance in resolving issues of federal law – . Decisions of the Second Circuit Court of Appeals, although not binding on us, are particularly persuasive.” Turner v. Frowein, supra note 111, at 340-341.

note 50, at 423-425.

is discussed extensively in Turner v. Frowein, 253 Conn. at 339-346.

      117 253 Conn. at 331. There is also a very similar sentence at 336-337.

Friedrich II, supra note 102 (6th Cir.); Nunez- Escudero v. Tice-Menley, 58 F.3d 374 (8th Cir. 1995); Currier v. Currier, 845 F.Supp. 916 (D.N.H. 1994); Tahan v. Duquette, 259 N.J.Super. 328, 613 A.2d 486 (1992); and In re Petition for Coffield, 96 Ohio App.3d 52, 644 N.E.2d 662 (1994).

Note: Turning Our Backs on the Children: Implications of Recent Decisions Regarding the Hague Convention on International Child Abduction, 2001 U.ILL. L.REV. 669, 688. Leading cases in which the finding of “grave risk” was not followed by a further inquiry into safeguards include Rodriguez v. Rodriguez, 33 F.Supp. 2d 456 (D. Md. 1999), and Steffen F. v. Severina P., 966 F. Supp. 922 (D.Ariz. 1997). Both were explicitly rejected by the Connecticut Supreme Court, 253 Conn. at 344 n. 16.

note 101.

      126 Israel is a party to the Child Abduction Convention, so its courts would have been obligated to return the child to Connecticut. Perhaps Mr. Jones had some more complex strategy in mind than simply moving to Israel.

at *37. Query, whether the State Department would assert that the use of the word “should” in this sentence of Judge Munro’s order makes it a mere suggestion. Compare text at note 63 supra.

      129 15 Nov. 1965, 658 U.N.T.S. 163, 20 U.S.T. 1361, TIAS No. 6638, entered into force for the United States 10 Feb. 1969. The Hague Service Convention is reprinted in a note at 28 U.S.C.A., Fed.R.Civ.P. Rule 4, at 16 I.L.M. 1339 (1977) and in the MARTINDALE-HUBBELL LAW DIRECTORY. The text is available in electronic form at www.hcch.net/e/conventions/text14e.html. The U.S. “Central Authority” for purposes of this Convention is the Office of International Judicial Assistance, Civil Division, Department of Justice, 1100 L Street, N.W., Room 11006, Washington, D.C. 20530, (202) 307-0983.

      130 Sec. 11-8. Orders of Notice Directed Outside of the United States of America If service of process can not be made under the applicable international treaty or convention within sixty days from the issuance of the summons, then the judicial authority may issue, upon the application of any party, an order of notice. In determining what manner and form of notice shall be ordered, the judicial authority shall consider the following:

(1) other methods of service specified or allowed in any applicable international treaty convention, including any reservations;

(2) whether all applicable international treaties and conventions prohibit substituted service;

(3) what method of service provides the greatest likelihood the party being served will receive actual and timely notice of the suit so the party may appear and defend;

(4) whether a particular method of service violates the law, particularly the criminal law, of the foreign country involved;

(5) whether an actual agent of the party being served can be served within the United States.

1998 Survey, supra note 95, at 363- 365; Houston Putnam Lowry & Peter W. Schroth, Survey of 1996 Developments in International Law in Connecticut, 71 CONN.B.J. 185, 185-189 (1997); 1995 Survey, supra note 95, at 76-81; Houston Putnam Lowry & Peter W. Schroth, Survey of 1994 Developments in International Law in Connecticut, 69 CONN.B.J. 143, 147-149, 151-153 (1997); Houston Putnam Lowry & Peter W. Schroth, Survey of 1993 Developments in International Law in Connecticut, 68 CONN.B.J. 222, 232-235 (1994) (hereinafter “1993 Survey”); 1991 Survey, supra note 95, at 65-68.

      135 Addresses for the Canadian Central Authorities, and those of other countries, can be found at travel.state.gov/hague_service.html.

Provided the State of destination does not object, the present Convention shall not interfere with –

a) the freedom to send judicial documents, by postal channels, directly to persons abroad,

b) the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination,

c) the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination.

      139 The narrow terms “transacts business,” as used in §33-929(e), and “transact business,” as used in § 33-920, must not be confused with the broader term “transacts any business,” as used in §52-59b. See Zartolis v. Nisenfeld, 184 Conn. 471, 476 n. 4 (1981).

      140 (b) The following activities, among others, do not constitute transacting business within the meaning of subsection (a) of this section: (1) Maintaining, defending or settling any proceeding; (2) holding meetings of the board of directors or shareholders or carrying on other activities concerning internal corporate affairs; (3) maintaining bank accounts; (4) maintaining offices or agencies for the transfer, exchange and registration of the corporation’s own securities or maintaining trustees or depositaries with respect to those securities; (5) selling through independent contractors; (6) soliciting or obtaining orders, whether by mail or through employees or agents or otherwise, if the orders require acceptance outside this state before they become contracts; (7) creating or acquiring indebtedness, mortgages and security interests in real or personal property; (8) securing or collecting debts or enforcing mortgages and security interests in property securing the debts; (9) owning, without more, real or personal property; (10) conducting an isolated transaction that is completed within thirty days and that is not one in the course of repeated transactions of a like nature; (11) transacting business in interstate commerce.

.

supra note 129.

      144 Pavia v. Club Med, 1998 U.S. Dist. LEXIS 18640 (D. Conn. 1998).

note 95, at 364-365.

      146 Judge Karazin cited three such decisions, of which two remain unreported in LEXIS. The reported decision is Downes v. Ryobi America Corp., 1993 Conn. Super. LEXIS 640, 8 Conn. L. Rptr. 502 (1993), on which we commented in 1993 Survey, supra note 131, at 232-233.

      148 The court quoted part of this without providing a source. One source is a page on the web site of the Hague Conference on Private International Law, www.hcch.net/e/status/stat14e.html.

travel.state.gov/hague_service.html.

      151 According to the “courtesy translation” on the web site of the Hague Conference on Private International Law, which does not provide the Spanish original:

In relation to Article 10, the United Mexican States are opposed to the direct service of documents through diplomatic or consular agents to persons in Mexican territory according to the procedures described in subparagraphs a), b), and c), unless the judicial authority exceptionally grants the simplification different from the national regulations and provided that such a procedure does not contravene public law or violate individual guarantees. The request must contain the description of the formalities whose application is required to effect service of the document.

En relación con el artículo 10, los EUM no reconocen la facultad de remitir directamente los documentos judiciales a las personas que se encuentren en su territorio, conforme a los procedimientos previstos en los incisos a), b) y c), salvo que la Autoridad Judicial conceda, excepcionalmente, la simplificación de formalidades distintas a las nacionales, y que ello no resulte lesivo al orden público o a las garantías individuales. La petición deberá contener la descripción de las formalidades cuya aplicación se solicita para diligenciar la notificación o traslado del documento.

note 131, at 185-186.

      158 Venables v. Bell, 941 F.Supp. 26, 27 (D. Conn. 1996).

note 50, at 416-417.

      162 No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.

      163 Right of action not lost where process served after statutory period. When

(a) Except in the case of an appeal from an administrative agency governed by section 4-183, 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 a state marshal authorized to serve the process and the process is served, as provided by law, within fifteen days of the delivery.

(b) In any such case the state marshal making service shall endorse under oath on such state marshal’s return the date of delivery of the process to such state marshal for service in accordance with this section.

note 50, at 412-416.

Any defendant, wishing to contest the court’s jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance. Except in summary process matters, the motion shall be placed on the short calendar to be held not less than fifteen days following the filing of the motion, unless the judicial authority otherwise directs.

      172 Motion to Dismiss – Waiver Based on Certain Grounds Any claim of lack of jurisdiction over the person or improper venue or insufficiency of process or insufficiency of service of process is waived if not raised by a motion to dismiss filed in the sequence provided in Sections 10-6 and 10-7 and within the time provided by Section 10-30.

      174 Durkin v. Intevac, Inc., 2000 Conn. Super. LEXIS 1962.

CONN. GEN. STAT. §52-265a; Practice Book §83-1.

      179 8 Conn. L. Rptr. 551, 554, 1993 Conn. Super. LEXIS 775 at *16 (1993). This is quoted in Durkin v. Intevac, Inc., 2000 Conn. Super. LEXIS 1962 at *13, as a remark of Judge Tobin in Farley v. Embassy Suites, Inc., 1996 Conn. Super. LEXIS 326 at *6, but there it was in turn a quotation from Judge Lewis’s decision in Xerox Corp. The Supreme Court noticed and took umbrage, quoting this “notion” at 258 Conn. 475-476.

      180 www.nelfonline.org/cases/durkin.htm.

      183 18 March 1970, 23 U.S.T. 2555, TIAS No. 7444, 847 U.N.T.S. 231, 28 U.S.C. §1782, 8 I.L.M. 37 (1969), reprinted in the MARTINDALE-HUBBELL LAW DIRECTORY, available electronically at www.hcch.net/e/conventions/text20e.html. See 1998 Survey, supra note 95, at 365-369.

A Contracting State may at the time of signature, ratification or accession, declare that it will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents as known in Common Law countries.

      This article, as Professor Lowenfeld says, is “not only Delphic in its text, it is unsound in concept.” ANDREAS LOWENFELD, INTERNATIONAL LITIGATION AND THE QUEST FOR REASONABLENESS 198 (1996). Still, it is clear that this wording, which was a British proposal, was intended to serve in some way as a limit on the use of American-style discovery in countries that consider our methods excessive, so any balanced reading of the Convention must result in some such limit. One of the shining exceptions to the lamentable trend, since Société Nationale Industrielle Aérospatiale v. United States District Court, 482 U.S. 522 (1987), toward ignoring the Hague Evidence Convention in federal cases, is In re Perrier Bottled Water Litigation, 138 F.R.D. 348 (D. Conn. 1991). In that case, Judge Daly responded to the assertion that litigation against a private French company was a private matter, not involving the sovereignty of the French Republic, by saying, “The simple fact that, in joining the Convention, France has consented to its procedures is an expression of France’s sovereign interests and weighs heavily in favor of the use of those procedures.” Id. at 355. Some other decisions in this vein are Hudson v. Hermann Pfauter GmbH & Co., 117 F.R.D. 33 (N.D.N.Y. 1987); Husa v. Laboratoires Servier SA, 740 A.2d 1092 (N.J. Super. Ct. App. Div. 1999); Geo-Culture, Inc. v. Siam Investment Management, SA, 936 P.2d 1063 (Or. App. 1997).

      It is important to note – although usually it is not noted – that the opinion of the Court in Aérospatiale lends at least moral support to this approach:

American courts, in supervising pretrial proceedings, should exercise special vigilance to protect foreign litigants from the danger that unnecessary, or unduly burdensome, discovery may place them in a disadvantageous position. Judicial supervision of discovery should always seek to minimize its costs and inconvenience and to prevent improper uses of discovery requests. When it is necessary to seek evidence abroad, however, the district court must supervise pretrial proceedings particularly closely to prevent discovery abuses. For example, the additional cost of transportation of documents or witnesses to or from foreign locations may increase the danger that discovery may be sought for the improper purpose of motivating settlement, rather than finding relevant and probative evidence. Objections to “abusive” discovery that foreign litigants advance should therefore receive the most careful consideration.

      482 U.S. at 546. In addition, it appears to us that an international trend toward reasonable balance in these matters can be discerned in Article 9 of the new Rules on the Taking of Evidence in International Commercial Arbitration adopted by the International Bar Association in 1999, available electronically at www.ibanet.org/pdf/rules-of-evid-2.pdf:

1. The Arbitral Tribunal shall determine the admissibility, relevance, materiality and weight of evidence.

2. 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:

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

(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.

3. The Arbitral Tribunal may, where appropriate, make necessary arrangements to permit evidence to be considered subject to suitable confidentiality protection.

4. If a Party fails without satisfactory explanation to produce any document requested in a Request to Produce to which it has not objected in due time or fails to produce any document ordered to be produced by the Arbitral Tribunal, the Arbitral Tribunal may infer that such document would be adverse to the interests of that Party.

5. If a Party fails without satisfactory explanation to make available any other relevant evidence, including testimony, sought by one Party to which the Party to whom the request was addressed has not objected in due time or fails to make available any evidence, including testimony, ordered by the Arbitral Tribunal to be produced, the Arbitral Tribunal may infer that such evidence would be adverse to the interests of that Party.

1999 Survey, supra note 50, at 409-410.

      185 This appears to be a slight overstatement: the Czech Republic, the Slovak Republic and Israel do not appear to have made such declarations.

      187 In Murphy v. United States, 199 F.3d 599 (2d Cir. 1999), the Second Circuit affirmed the district court’s order that Mr. Murphy be deported to Canada, holding that the “dual criminality” rule was satisfied, even though his prosecution in the United States would be barred by the applicable statutes of limitation.

      188 In re Extradition of Cheung, 968 F. Supp. 791 (D. Conn. 1997).

      189 Agreement between the Government of the United States of America and the Government of Hong Kong for the Surrender of Fugitive Offenders, 20 Dec. 1996, S. Treaty Doc. No. 105-3 (1997). This can be found in the CONGRESSIONAL RECORD for 23 Oct. 1997 at S-11165 and electronically at www.usconsulate.org.hk/ushk/treaties/1997/1023.htm.

      190 18 U.S.C. Sec. 3184. Fugitives from foreign country to United States Whenever there is a treaty or convention for extradition between the United States and any foreign government, or in cases arising under section 3181(b), any justice or judge of the United States, or any magistrate judge authorized so to do by a court of the United States, or any judge of a court of record of general jurisdiction of any State, may, upon complaint made under oath, charging any person found within his jurisdiction, with having committed within the jurisdiction of any such foreign government any of the crimes provided for by such treaty or convention, or provided for under section 3181(b), issue his warrant for the apprehension of the person so charged, that he may be brought before such justice, judge, or magistrate judge, to the end that the evidence of criminality may be heard and considered. Such complaint may be filed before and such warrant may be issued by a judge or magistrate judge of the United States District Court for the District of Columbia if the whereabouts within the United States of the person charged are not known or, if there is reason to believe the person will shortly enter the United States. If, on such hearing, he deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or convention, or under section 3181(b), he shall certify the same, together with a copy of all the testimony taken before him, to the Secretary of State, that a warrant may issue upon the requisition of the proper authorities of such foreign government, for the surrender of such person, according to the stipulations of the treaty or convention; and he shall issue his warrant for the commitment of the person so charged to the proper jail, there to remain until such surrender shall be made.

      195 An example cited by the court is Burnet v. Chicago Portrait Co., 285 U.S. 1 (1932), in which the Supreme Court found the State of New South Wales to be a “foreign country” within the meaning of the 1921 Revenue Act, in part because the statute’s purpose was to mitigate double taxation.

      196 Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 81 (1804) (Marshall, C.J.).

      199 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 Dec. 1984, G.A. Res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) 197, U.N. Doc. A/39/51 (1984), 1465 U.N.T.S 84, CTIA 8,623.000, 23 I.L.M. 1027 (1984), entered into force 26 June 1987, entered into force for the United States 20 Nov. 1987. The Convention is available electronically at www.un.org/documents/ga/res/39/a39r046.htm, www.unhchr.ch/html/menu3/b/h_cat39.htm and many other places. The latest list of all ratifications is available at www.unhchr.ch/pdf/https://plclawoffice.com/wp-content/uploads/report.pdf. We provided some further details regarding extradition when a risk of torture is alleged in 1999 Survey, supra note 50, at 407-408. See also Regulations Concerning CAT, Interim Rule, 64 Fed. Reg. 8477 (19 Feb. 1999). Article III of the Convention provides:

1. No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

      203 But not for the first time. In Gutierrez-Parra v. Ashcroft, No. 3:01CV1183(AVC), slip op. at 3 (D. Conn. 4 Oct. 2001), Judge Covello rejected a similar argument.

      207 Additional Second Circuit cases involving compulsory international arbitration, but with no obvious Connecticut aspects, are U.S. Titan, Inc. v. Guangzhou Zhen Hua Shipping Co., Ltd., 241 F.3d 135 (2d Cir. 2001), and Sphere Drake Insurance Ltd. v. Clarendon National Ins. Co., 263 F.3d 26 (2d Cir. 2001).

      211 10 June 1958, 21 U.S.T. 2517, TIAS No. 6997, available electronically at www.uncitral.org/english/texts/arbitration/NY-conv.htm, entered into force 7 June 1959, entered into force for the United States 29 Dec. 1970, implemented by 9 U.S.C. §201 et seq.

      212 30 Jan. 1975, O.A.S.T.S. No. 42, 14 I.L.M. 336 (1975), available electronically at www.sice.oas.org/dispute/comarb/iacac/iacac2e.asp and www.oas.org/juridico/english/ treaties/b-35.htm, entered into force 16 June 1976, entered into force for the United States 27 Sep. 1990. See also 1999 Survey, supra note 50, at 410 n. 16.

      215 Thomson-CSF, S.A. v. American Arbitration Assoc., 64 F.3d 773 (2d Cir. 1995); Smith/Enron Cogeneration Ltd. Partnership v. Smith Cogeneration Int’l, Inc., 198 F.3d 88 (2d Cir. 1999).