vention, the objective would be achieved through uniform local rules of form, rather than through local or international law that makes recognition of foreign wills turn on choice of law rules involving possible application of foreign law. The international will provisions, prepared for the National Conference of Commissioners on Uniform State Laws by the Joint Editorial Board for the Uniform Probate Code which has functioned as a special committee of the Conference for the project, should be enacted by all States, including those that have not accepted the Uniform Probate Code. To that end, the proposal being submitted to the National Conference is framed both as a freestanding act and as an added part of the Uniform Probate Code. The bracketed headings and numbers fit the proposal into UPC; the others present the proposal as a free-standing act.

Uniform State enactment of these provisions will permit the Washington Convention of 1973 to be implemented through State legislation familiar to will draftsmen. Thus, local proof of foreign law and reliance on Federal legislation regarding wills can be avoided when foreign wills come into our States to be implemented. Also, the citizens of all States will have a will form available that should greatly reduce perils of proof and risks of invalidity that attend proof of American wills abroad.

History of the International Will

Discussions about possible international accord on an acceptable form of will led the Governing Council of UNIDROIT (International Institute for the Unification of Private Law) in 1960 to appoint a small committee of experts from several countries to develop proposals. Following week-long meetings at the Institute's quarters in Rome in 1963, and on two occasions in 1965, the Institute published and circulated a Draft Convention of December 1966 with an annexed uniform law that would be required to be enacted locally by those countries agreeing to the convention. The package and accompanying explanations were reviewed in this country by the Secretary of State's Advisory Committee on Private International Law. In turn, it referred the proposal to a special committee of American probate specialists drawn from members of NCCUSL's [National Conference of Commissioners on Uniform State Laws] Special Committee on the Uniform Probate Code and its advisers and reporters. The resulting reports and recommendations were affirmative and urged the State Department to cooperate in continuing efforts to develop the 1966 Draft Convention, and to endeavor to interest other countries in the subject.

Encouraged by support for the project from this country and several others, UNIDROIT served as host for a 1971 meeting in Rome of an expanded group that included some of the original panel of experts and others from several countries that were not represented in the early drafting sessions. The result of this meeting was a revised draft of the proposed convention and annexed uniform law and this, in turn, was the subject of study and discussion by many more persons in this country. In mid-1973, the proposal from UNIDROIT was discussed in a joint program of the Real Property Probate and Trust Law Section, and the Section of International Law at the American Bar Association's annual meeting held that year in Washington, D.C. By late 1973. the list of published, scholarly discussions of the International Will proposals included Fratcher, "The Uniform Probate Code and the International Will", 66 Mich. L. Rev. 469 (1968); Wellman, "Recent Unidroit Drafts on the International Will", 6 The International Lawyer 205 (1973); and Wellman, "Proposed International Convention Concerning Wills”, 8/4 Real Property, Probate and Trust Journal 622 (1973).

In October 1973, pursuant to a commitment made earlier to UNIDROIT representatives that it would provide leadership for the international will proposal if sufficient interest from other countries became evident, the United States served as host for the diplomatic Conference on Wills which met in Washington from October 10 to 26, 1973. 42 governments were represented by delegations, 6 by observers. The United States delegation of 8 persons plus 2 congressional advisers and 2 staff advisers, was headed by Ambassador Richard D. Kearney. Chairman of the Secretary of State's Advisory Committee on Private International Law who also was selected president of the Conference. The result of the Conference was the Convention of October 26, 1973, Providing a Uniform Law on the Form of an International Will, an appended

Annex, Uniform Law on the Form of an International Will, and a Resolution recommending establishment of State assisted systems for the safekeeping and discovery of wills. . . .

A more detailed account of the UNIDROIT project and the 1973 Convention. together with recommendations regarding United States implementation of the Convention, appears in Nadelmann, "The Formal Validity of Wills and the Washington Convention 1973 Providing the Form of an International Will," XXII The American Journal of Comparative Law, 365 (1974).

Description of the Proposal

The 1973 Convention obligates countries becoming parties to make the annexed uniform law a part of their local law. The proposed uniform law contemplates the involvement in will executions under this law of a Staterecognized expert who is referred to throughout the proposals as the "authorized person." Hence, the local law called for by the Convention must designate authorized persons, and prescribe the formalities for an international will and the role of authorized persons relating thereto. The Convention binds parties to respect the authority of another party's authorized persons and this obligation, coupled with local enactment of the common statute prescribing the role of those persons and according finality to their certificates regarding due execution of wills, assures recognition of international wills under local law in all countries joining the Convention.

The Convention and the annexed uniform law deal only with the formal validity of wills. Thus, the proposal is entirely neutral in relation to local laws dealing with revocation of wills, or those defining the scope of testamentary power, or regulating the probate, interpretation, and construction of wills, and the administration of decedents' estates. The proposal describes a highly formal mode of will execution; one that is sufficiently protective against imposition and mistake to command international approval as being safe enough. However, failure to meet the requirements of an international will does not necessarily result in invalidity, as the mode of execution described for an international will does not preempt or exclude other standards of testamentary validity.

The details of the prescribed mode of execution reflect a blend of common and civil law elements. Two attesting witnesses are required in the tradition of the English Statute of Wills of 1837 and its American counterparts. The authorized person whose participation in the ceremony of execution is required, and whose certificate makes the will self-proved, plays a role not unlike that of the civil law notary, though he is not required to retain custody of the will as is customary with European notaries.

The question of who should be given state recognition as authorized persons was resolved by designation of all licensed attorneys. The reasons for this can be seen in the observations about the role of Kurt H. Nadelmann. writing in The American Journal of Comparative Law:

"The duties imposed by the Uniform Law upon the person doing the certifying go beyond legalization of signatures, the domain of the notary public. At least paralegal training is a necessity. Abroad, in countries with the law trained notary, the designation is likely to go to this class or at least to include it. Similarly, in countries with a closely supervised class of solicitors. their designation may be expected."

Attorneys are subject to training and licensing requirements everywhere in this country. The degree to which they are supervised after qualification varies considerably from State to State, but the trend is definitely in the direction of more rather than less supervision. Designation of attorneys in the uniform law permits a State to bring the statute into its local law books without undue delay.

Roles for Federal and State Law in Relation to International Will Several alternatives are available for arranging Federal and State laws on the subject of international wills. The 1973 Convention obligates nations becoming parties to introduce the annexed uniform law into their local law. and to recognize the authority, vis a vis will executions and certificates relating to wills, of persons designated as authorized by other parties to the Convention. But, the Convention includes a clause for Federal States that

may be used by the United States as it moves, through the process of Senate advice and consent, to accept the international compact. Through it, the Federal Government may limit the areas in this country to which the Convention will be applicable. Thus, article XIV of the 1973 Convention provides:

1. If a state has two or more territorial units in which different systems of law apply in relation to matters respecting the form of wills, it may at the time of signature, ratification, or accession, declare that this Convention shall extend to all its territorial units or only to one or more of them, and may modify its declaration by submitting another declaration at any time.

2. These declarations shall be notified to the Depositary Government and shall state expressly the territorial units to which the Convention applies. One alternative would be for the Federal Government to refrain from use of article XIV and to accept the Convention as applicable to all areas of the country. The obligation to introduce the uniform law into local law then could be met by passage of a Federal statute incorporating the uniform law and designating authorized persons who can assist testators desiring to use the international format, possibly leaving it open for State legislatures, if they wish, to designate other or additional groups of authorized persons. As to constitutionality, the Federal statute on wills could be rested on the power of the Federal Government to bind the States by treaty and to implement a treaty obligation to bring agreed upon rules into local law by any appropriate method. Missouri v. Holland, 252 U.S. 416 (1920); Nadelmann, "The Formal Validity of Wills and the Washington Convention 1973 Providing the Form of An International Will," XXII The Am. Jn'l of Comp. L. 365, 375 (1974). Prof. Nadelmann favors this approach, arguing that new risks of invalidity of wills would arise if the treaty were limited so as to be applicable only in designated areas of the country, presumably those where State enactment of the uniform law already had occurred.

One disadvantage of this approach is that it would place a potentially important method for validating wills in Federal statutes where probate practitioners, long accustomed to finding the statutes pertinent to their specialty in State compilations, simply would not discover it. Another, of course, relates to more generalized concerns that would attend any move by the Federal Government into an area of law traditionally reserved to the States. Alternatively, the Federal Government might accept the Convention and uniform law as applicable throughout the land, so that international wills executed with the aid of authorized persons of other countries would be good anywhere in this country, but refrain from any designation of authorized persons, other than possibly of some minimum Federal cadre, or of those who could function within the District of Columbia, leaving the selection of more useful groups of authorized persons entirely to the States. One result would be to narrow greatly the advantage of international wills to American testators who wanted to execute their instruments at home. In probable consequence, there would be pressure on State legislatures to enact the uniform law so as to make the advantages of the system available to local testators. Assuming some State legislatures respond to the pressure affirmatively and others negatively, a crazy-quilt pattern of international will States would develop, leading possibly to some of the confusion and risk of illegality feared by Prof. Nadelmann. On the other hand, since execution of an international will involves use of an authorized person who derives authority from (on this assumption) State legislation, it seems somewhat unlikely that testators in States that have not designated authorized persons will be led to believe they can make an international will unless they go to a State where authorized persons have been designated. Hence, the confusion may not be as great as if the Convention were inapplicable to portions of the country.

Finally, the Federal Government might use article XIV, as suggested earlier. and designate some but not all States as areas of the country in which the Convention applies. This seems the least desirable of all alternatives because it subjects international wills from abroad to the risk of nonrecognition in some States, and offers the risk of confusion of American testators regarding the areas of the country where they can execute a will that will be received outside this country as an international will.

Under any of the approaches, the desirability of widespread enactment of State statutes, embodying the uniform law and designating authorized persons, seems clear, as does the necessity for this project of the National Conference of Commissioners on Uniform State Laws.

Dept. of State File L.

For further information concerning the Convention and Uniform Law on the form of an International Will, see the 1973 Digest, Ch. 15, pp. 582-583.

83

International Commercial Arbitration

U.S.-U.S.S.R.

Arbitration Clauses

On January 12, 1977, the American Arbitration Association (AAA) announced that the U.S.S.R. Chamber of Commerce and Industry (U.S.S.R. Chamber), the Stockholm Chamber of Commerce (Stockholm Chamber), and the AAA had entered into new arrangements for the arbitration of contract disputes which may arise between U.S. business firms and Soviet foreign trade organizations. Excerpts from the AAA announcement of the arrangements follow:

The main feature of the new arrangement is a model arbitration clause which corporations in the United States and Soviet foreign trade organizations may choose to include in their contracts. Known as the "Optional Clause for Use in Contracts in U.S.A.-U.S.S.R. Trade-1977," it provides for arbitration to take place in Sweden. with the Stockholm Chamber of Commerce having the authority to appoint the presiding arbitrator from a panel which has been jointly established by the American Arbitration Association and the U.S.S.R. Chamber of Commerce and Industry. The panel members are lawyers and judges from a number of different countries other than the U.S.A. or U.S.S.R.

A major innovation in the clause is that arbitrations will be conducted under the new arbitration rules of the United Nations Commission on International Trade Law. This is the first international arrangement to include these new rules, which were developed by experts from many nations and were recommended last month by the U.N. General Assembly for use in world trade.

In letters exchanged at the ceremony in New York today, the Soviet and U.S.A. organizations declared that each views the new clause "as being acceptable for inclusion in contracts" in trade between the two countries. At the same time, it was pointed out that the model clause is optional and that parties in both countries are free to utilize the clause or such other form of arbitration which they may mutually prefer and agree best suits their particular needs.

News from the American Arbitration Association, Jan. 12, 1978.

The model clause provides that there shall be three arbitrators in each case. Each party is to appoint one arbitrator. If the respondent does not promptly appoint an arbitrator, that arbitrator will be appointed by the U.S.S.R. Chamber when the respondent is a Soviet organization or by the AAA when the respondent is an American corporation. If either the U.S.S.R. Chamber or the AAA fails to perform this function promptly, the Stockholm Chamber is to do so.

The two arbitrators thus appointed are to choose a third arbitrator who will act as presiding arbitrator. If they do not agree on the presiding arbitrator within thirty days, the model clause provides that the presiding arbitrator will be appointed by the Stockholm Chamber from a panel of eighteen lawyers and judges who have been jointly agreed to by the AAA and the U.S.S.R. Chamber. As originally constituted, the panel includes six persons from Sweden, six from Eastern European countries (not including the U.S.S.R.) and six from Western countries (not including the United States). The model clause provides that the Stockholm Chamber will submit a list containing all eighteen names on the panel to each party. Each party may then delete any persons to whom it objects, but not more than one-half of the names on the list, and may number the remaining names on the list in the order of its preference. The Stockholm Chamber will then appoint the arbitrators from among those whose names were not deleted, taking into account the order of preference indicated by the parties. If the parties remaining on the list after deletion of names by the parties are unwilling or unable to act as presiding arbitrator, the Stockholm Chamber will appoint a person from outside the panel who is not a national of either the United States or the U.S.S.R.

In addition to acting as appointing authority for arbitrators, the Stockholm Chamber has agreed to furnish secretariat services, physical facilities and similar assistance when requested to do so in cases conducted under the model clause.

Persons who desire to use the model clause may reproduce it in full. in their contracts, or may incorporate it therein by reference using an abbreviated form which has also been prepared.

The text of the optional arbitration clause and the abbreviated clause reads as follows:

The clause set forth below is viewed by the American Arbitration Association and the U.S.S.R. Chamber of Commerce as being an acceptable arbitration clause for inclusion in contracts between legal or natural persons of the U.S.A. and foreign trade organizations of the U.S.S.R.

The text of the clause may either be reproduced in full in the contract, or may be incorporated therein by reference using the Abbreviated Form which also appears below.

Parties of both countries are free to utilize this clause or such other form of arbitration clause which they mutually prefer and agree best suits their particular needs.

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