[Ecommerce] Re: [Hague-jur-commercial-law] Roundtable on the Hague Dec 23
at 10 AM
Miriam Nisbet
mnisbet@alawash.org
Tue Dec 31 16:21:00 2002
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Here are just a few notes on the E-commerce Roundtable held at the
American Library Association on Monday December 23, 2002. The purpose
of the roundtable was to get an update on the future of the proposed
Hague Convention on Jurisdiction and Enforcement of Foreign Judgments
from Jeff Kovar, Department of State, and Peter Trooboff. Jeff and
Peter are the two members of the U.S. delegation who participated in the
October '02 meeting in The Hague as part of an informal Working Group
trying to draft a narrowed treaty. The next meeting of the working
group is Jan. 6-9 and again in March. The goal is to get the text of a
draft together for the next diplomatic meeting, which may be late 2003
at the earliest.
Jeff and Peter reported that the current draft focuses on only four
areas: choice of forum agreements in B2B contracts; jurisdiction in the
defendant's home; counterclaims; and physical torts. The following are
some of the questions the group is trying to address.
1. Is a narrow treaty worth doing? Probably, says Jeff, even if
limited to choice of forum in B2B agreements.
2. Choice of law: if you want to challenge a choice of forum clause,
which law applies to decide issues associated with that (validity,
consent, etc.)? One option, if the contract itself doesn't specify, is
for the default to be the law of the forum designated.
3. Must the parties have a connection to the forum designated? What
should the treaty say? Some countries do not think any connection is
needed (U.K.); some think there should be some connection and they
specify what those connections are; and some think it should be up to
the law of the forum designated.
4. Should there be a standard for challenging a choice of forum
agreement on substantive grounds, i.e., an escape clause? For example,
US law enforces choice of forum clauses unless found to be "unreasonable
and unjust." Another escape might if the court finds that enforcement
would "result in manifest injustice."
Jeff noted that the delegation was hearing for the first time that
there is a growing concern on the part of businesses with click-wrap
agreements that designate the choice of forum. (He indicated that he
would like to meet with members of AFFECT, the coalition that has been
working against UCITA, which raises some of the same issues.)
Peter suggested that an escape clause in UCITA, "unreasonable or
unjust," keeps the standard of the Supreme Court decision in Carnival
Cruise Lines for consumers at least. He asked, if that escape clause
were to be applied to all (businesses as well as consumers), and to both
negotiated and non-negotiated contracts, would that help? Peter and
Jeff also asked whether taking contracts for copyrighted materials out
of the treaty would solve the problem. Manon Ress and Jamie Love
pointed out that that would still leave contracts dealing with genetic
resources, traditional knowledge, and biotechnology, which would be a
problem.
The working group also has discussed a public policy exception to apply
to the jurisdictional part of the treaty (not just the enforcement
part). Jeff mentioned that some countries have statutory exclusions for
non-enforceability of choice of forum clauses, such as to protect
franchisees. Should the treaty recognize these, or allow countries to
declare that their statutory exclusions will not be included in the
treaty?
5. Interim relief: should the treaty have rules that there can or
cannot be interim relief (e.g., an injunction) ordered by a court other
than the court of the forum designated in the contract?
6. Disconnection: where there are other treaties that address
jurisdiction, recognitiona and enforcement, which treaty should apply?
These and other issues are set out in the report of the working group
at http://www.hcch.net/e/workprog/jdgm.html [Preliminary Document No.
20].
Contact:
Miriam M. Nisbet
Legislative Counsel
American Library Association
1301 Pennsylvania Ave. NW - #403
Washington, D.C. 20004-1701
Voice: 202-628-8410, x. 202,
or 800-941-8478, x. 202
Fax: 202-628-8419
e-mail: mnisbet@alawash.org
http://www.ala.org/washoff
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<DIV>Here are just a few notes on the E-commerce Roundtable held at the American
Library Association on Monday December 23, 2002. The purpose of the
roundtable was to get an update on the future of the proposed Hague
Convention on Jurisdiction and Enforcement of Foreign Judgments from Jeff Kovar,
Department of State, and Peter Trooboff. Jeff and Peter are the two
members of the U.S. delegation who participated in the October '02 meeting in
The Hague as part of an informal Working Group trying to draft a narrowed
treaty. The next meeting of the working group is Jan. 6-9 and again in
March. The goal is to get the text of a draft together for the next
diplomatic meeting, which may be late 2003 at the earliest. </DIV>
<DIV> </DIV>
<DIV>Jeff and Peter reported that the current draft focuses on only four
areas: choice of forum agreements in B2B contracts; jurisdiction in the
defendant's home; counterclaims; and physical torts. The following are
some of the questions the group is trying to address.</DIV>
<DIV>1. Is a narrow treaty worth doing? Probably, says Jeff, even if
limited to choice of forum in B2B agreements.</DIV>
<DIV>2. Choice of law: if you want to challenge a choice of forum
clause, which law applies to decide issues associated with that (validity,
consent, etc.)? One option, if the contract itself doesn't specify, is for
the default to be the law of the forum designated.</DIV>
<DIV>3. Must the parties have a connection to the forum designated?
What should the treaty say? Some countries do not think any connection is
needed (U.K.); some think there should be some connection and they specify what
those connections are; and some think it should be up to the law of the forum
designated. </DIV>
<DIV>4. Should there be a standard for challenging a choice of forum
agreement on substantive grounds, i.e., an escape clause? For example, US
law enforces choice of forum clauses unless found to be "unreasonable and
unjust." Another escape might if the court finds that enforcement would
"result in manifest injustice." </DIV>
<DIV>Jeff noted that the delegation was hearing for the first time that there is
a growing concern on the part of businesses with click-wrap agreements that
designate the choice of forum. (He indicated that he would like to meet
with members of AFFECT, the coalition that has been working against UCITA, which
raises some of the same issues.) </DIV>
<DIV>Peter suggested that an escape clause in UCITA, "unreasonable or unjust,"
keeps the standard of the Supreme Court decision in Carnival Cruise Lines for
consumers at least. He asked, if that escape clause were to be
applied to all (businesses as well as consumers), and to both negotiated and
non-negotiated contracts, would that help? Peter and Jeff also asked
whether taking contracts for copyrighted materials out of the treaty would solve
the problem. Manon Ress and Jamie Love pointed out that that would still
leave contracts dealing with genetic resources, traditional knowledge, and
biotechnology, which would be a problem. </DIV>
<DIV>The working group also has discussed a public policy exception to apply to
the jurisdictional part of the treaty (not just the enforcement part).
Jeff mentioned that some countries have statutory exclusions for
non-enforceability of choice of forum clauses, such as to protect
franchisees. Should the treaty recognize these, or allow countries to
declare that their statutory exclusions will not be included in the
treaty?</DIV>
<DIV>5. Interim relief: should the treaty have rules that there can
or cannot be interim relief (e.g., an injunction) ordered by a court other than
the court of the forum designated in the contract? </DIV>
<DIV>6. Disconnection: where there are other treaties that address
jurisdiction, recognitiona and enforcement, which treaty should apply?
</DIV>
<DIV>These and other issues are set out in the report of the working group at <A
href="http://www.hcch.net/e/workprog/jdgm.html">http://www.hcch.net/e/workprog/jdgm.html</A> [Preliminary
Document No. 20]. <BR><BR>Contact:<BR>Miriam M. Nisbet<BR>Legislative
Counsel<BR>American Library Association<BR>1301 Pennsylvania Ave. NW -
#403<BR>Washington, D.C. 20004-1701<BR>Voice: 202-628-8410, x. 202,<BR>or
800-941-8478, x. 202<BR>Fax: 202-628-8419<BR>e-mail:
mnisbet@alawash.org<BR><A
href="http://www.ala.org/washoff">http://www.ala.org/washoff</A><BR></DIV></BODY></HTML>
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