International Law: International Law in Everyday Practice: Itís a Whole New World
By: George Bruno
When Judge Sonia Sotomayor appeared before the Senate Judiciary Committee during her confirmation hearing, several Republican Senators sought a commitment that she would not utilize international law in deciding cases before the US Supreme Court. Perhaps the Senators were thinking of her dissent in Croll v. Croll, 229 F.3d 133 (2d Cir., 2000) where she would have held that a ne exeat clause in a Hong Kong custody order vests "rights of custody" under the Hague Convention on the Civil Aspects of International Child Abduction. She quickly acceded to the Senators, explaining that the US Constitution would be her guiding source of law in deciding cases before the Court.
In reality, however, it is becoming difficult for US courts to ignore an ever-increasing body of international law and rules which can be described as (a) treaty and other commitments arising between government to government, (b) US law that has international implications, and (c) case law and standards in other countries that are persuasive in deciding US law and standards. There is hardly a topic area where international law is not involved in our daily practice of law: environmental, criminal, domestic relations, consumer, intellectual property, health, employment and, of course, trade law.
Consumer Law and Trade
Even a simple consumer transaction may have international implications. Last week a man from NH purchased a car advertised on craigslist.org from a seller in Quebec at an attractive price. The seller agreed to drive the car to Maine where the parties would close the deal. The car ran well, the parties exchanged title and funds, and the fully-satisfied buyer drove the car home.
However, when he tried to get the car inspected, he was told that it did not meet EPA standards, and that to correct the problem, the cost of repairs would equal the purchase price of the car. Unknown to both buyer and seller, Canadaís auto emission standards are completely different from those of the US. Moreover, the seller failed to inform US Customs at the border that he was bringing the car to the US to be sold, and the US buyer failed to request the customs paperwork. The buyerís only practical option is to try to resell the car in Canada.
The purchase and sale of goods overseas has many implications. Years ago, a simple contract between a willing seller and buyer might have been sufficient. Today, such transactions are largely governed by the UN Convention on the International Sale of Goods (CISG), creating a totally different playing field. Overlaying the Export-Import (Ex-Im) Bank for financing and guarantees, the due diligent checklist for the US Department of Commerceís Export Administration Regulations (EAR), the Department of Stateís International Trafficking in Armaments Regulations (ITAR), and the protocols and skills list of the Free Trade Area of the Americas (FTAA formerly NAFTA) lifts the transaction to a whole new plane.
In the post-9/11 world of immigration, carrying a computer across borders, or even secret IP formulas in the mind of a traveler, can set off international alarms. Deemed export regulations hold that foreign nationals who gain access to controlled technologies are equivalent to a company exporting the technology to foreign markets, even when a company does not export actual goods or services.
Curse of Corruption
While certain cultures accept the practice of bakshish or mordito [business bribes] as business-as-usual, US traders and deal-makers are aware of the strictures of the Foreign Corrupt Practice Act, and know to be mindful of the anti-boycott provisions of the Export Administration Regulations and the Tax Reform Act of 1976, particularly when dealing with Middle Eastern countries. One time when I was serving as Chief of Mission in Central America, a US businessman sat down next to me on a plane to Miami to complain that he had paid a large sum of money to a high government official in another country to secure a construction contract and the contract was not granted. He wanted to know if I could help him get his money back. He was serious. You can guess my response.
Corruption, especially in the Third World, can be an ongoing business challenge. More so, when trying to enforce a contract or receive payment for goods or services, particularly when the parties are too small for guarantees under OPIC or the Ex-Im Bank. Often it is a big risk to trust the courts of another country. That is why lawyers practicing in the international arena often insist that contracts provide for arbitration of disputes by trusted neutrals, or by using US law and a US venue.
Criminal and Family Law
Criminal defense attorneys have become astute today in advising non-US citizens of the consequences of a finding of guilty involving crimes of moral turpitude (CIMT) or aggravated felonies, realizing that such finding could lead to deportation, now called removal. State court annulment of conviction or state definitions of misdemeanor and felony are not recognized by the federal government. Even a DWI (sometimes considered a CIMT) may be sufficient for deportation or a reason to deny entry into the US or Canada.
If a defendant has been convicted of domestic violence or made subject to a protective order or domestic civil injunction, he or she may be removed or become ineligible to adjust status to that of a Legal Permanent Resident (aka LPR or green card holder) or to become a naturalized US citizen, even if the complaining spouse later claims the incident was not serious. Courts may not be doing the complaining spouse a service if the consequence of entering a temporary protective order for a woman is to have the father of her child deported, causing the family to lose its bread-winner and the children to lose their father.
In adoptions involving a foreign child, an early inquiry requires a determination of whether the child lives in a Hague or non-Hague Treaty country. Under the April 1, 2008, Hague Adoption Convention rules for intercountry adoptions supersede our local adoption law. The procedure is different if the other country is not a signatory.
This Hague treaty is not to be confused with the Hague convention related to the federal Parental Kidnapping Prevention Act, which requires authorities of every state to enforce and not modify orders made by the state court exercising proper jurisdiction. It also authorizes the use of the Unlawful Flight to Avoid Prosecution (UFAP) warrant and the Federal Parent Locator Service (FPLS) in family abductions. Political and judicial differences between countries as well as differing societal views on menís and womenís roles in society make child abduction cases difficult at best. Many countries have adopted this treaty to expedite the return of children wrongfully removed from their home countries. A practitioner should be wary of a parent seeking parenting time in a non-Hague treaty country.
US Embassy Resources
An often under-utilized resource is the highly-skilled staff of the US embassy. If called upon, the ambassador can help close a major contract, the Deputy Chief of Mission can facilitate a debt collection through mechanisms of the host government, the commercial officer can prepare background papers or assist with finding business partners, and the consular officer can expedite visas for students to US colleges. A significant portion of my practice involves diplomatic intervention for US citizens having difficulty overseas and who need to bring their problems before a high level decision-maker in the embassy or the state. A working familiarity of how embassies function is very helpful. US officials, more often than not, are pleased to weigh in upon understanding the US interest at stake.
Tools of the Trade
Finally, lawyers today in the international arena have tools that make communication and research easier, beginning with transferable cell phone chips to accommodate calls when moving from continent to continent, SKYPE for low-cost desktop video and voice calls, free nationwide conference calls, and of course, the Internet.