[Hague-jur-commercial-law] Open Letter to Delegates

[Manon Ress]

The Hague. Special Commission meeting December 1-9, 2003. 
Worried about Article 6 which is a strange and unnecessary article stating "nothing in the Convention shall prevent a party from requesting provisional and protective measures on an interim basis from ANY court or prevent ANY court from granting such measures".  The RIAA/MPAA lobbyist has left until Tuesday probably pretty confident that this will be in exactly as they want.  The following letter was sent to the delegates yesterday. 
Manon

*/An Open Letter to Delegates to the Hague Convention/*

Dear Delegates:

The undersigned organizations, which represent a large and diverse group 
of Internet and e-commerce companies, write to express their continuing 
concern with several serious issues in the draft Hague Convention on 
Jurisdiction and Enforcement of Judgments in Civil and Commercial Cases. 
The signatory organizations are the Computer and Communications Industry 
Association (CCIA), NetCoalition, the Internet Commerce Coalition (ICC), 
the U.S. Internet Industry Association (USIIA), and the U.S. Internet 
Service Provider Association (USISPA).

The draft treaty does not require that a choice of court agreement be 
the subject of meaningful negotiation between parties. Indeed, in its 
current form, the draft contains ambiguities that could be construed to 
not even require knowledge of a choice of court agreement or assent to 
the agreement. We do not believe such a result is either reasonable, or 
intended, and we urge you to ensure that the draft Convention is 
clarified to preclude it.

We are particularly concerned that the draft treaty could be read to 
subject Internet service providers—whether traditional ISPs, libraries 
or universities—to extensive liability in foreign courts under choice of 
court agreements they have never seen and to which they have never 
assented. Article 3 states that a choice of court agreement “shall be 
valid as to form” if it is entered into “in writing or by any other 
means of communication which renders information accessible so as to be 
usable for subsequent reference.” Service providers routinely transmit, 
store, and otherwise handle and refer to billions of packets of digital 
information on behalf of third parties. Service providers typically are 
not able to access this information. Even where access is possible, it 
is not practical and typically is not done. The information that is 
handled by a service provider may include provisions constituting the 
substance of a choice of court agreement. Although the service provider 
never sees the “agreement” and certainly never assents to it, the 
agreement nevertheless may well be in a form that is “accessible so as 
to be usable for subsequent reference.”

One specific example of particular concern, due to the variation of 
remedies available under national laws, the opportunity for forum 
shopping, and existing treaties protecting associated contract data, 
relates to copyright law. Under 1996 WIPO treaties, Contracting Parties 
are obligated to enact legislation protecting copyright “management 
information” (“CMI”) against alteration or removal. CMI is defined by 
treaty to include “information about the terms and conditions of use of 
the work.” It is likely that in the near future, many copyrighted works 
transiting the Internet will include associated CMI, including 
provisions governing forum choice. Given the substantial international 
variability in the treatment of service provider liability, service 
providers should not be subjected to such provisions in content they 
handle for third parties.

It has been argued that Article 3 is intended to address validity of the 
“form” of an agreement, rather than its substance. However, this line is 
not clearly drawn in the draft treaty. Is the need for knowledge of the 
terms of the agreement formal or substantive? Is the need for 
affirmative assent formal or substantive? Other provisions of Article 3 
suggest knowledge is, in fact, a matter of form. For example, Article 
3(d) specifically addresses knowledge as a matter of form, not 
substance, providing that an agreement may be created by the custom of 
the trade, /even if a party does not have actual knowledge of that 
custom./ Similarly, paragraphs (c) and (d) of Article 3 address validity 
where assent is implied and not actually given.

It is essential that the Convention clearly set forth that knowledge and 
assent to an agreement, as well as the identification of parties to an 
agreement, are governed by substantive contract law and that nothing in 
Article 3 is intended to limit the ability of a Contracting State to 
apply its own substantive contract law with respect to choice of court 
agreements. Further, it is essential that the provisions of the 
Convention allowing a Contracting State to determine that a choice of 
court agreement is “null and void” (e.g., Article 5(a), Article 7(a)) 
make clear that an agreement that is not valid under the substantive 
contract law of a State is “null and void” even if it is considered 
valid as to form.

We are also concerned about Article 6, which appears to imply that 
interim relief may be sought from any court anywhere. We object to any 
document implying that forum shopping for interim relief is sanctioned 
by international law. Any such implication would be especially 
pernicious in the context of copyright infringement claims, where 
available remedies differ greatly from country to country and interim 
orders often have the practical effect of deciding a case and 
effectively putting the defendant out of business. Internet service 
providers are particularly at risk of orders requiring them to block 
access to materials on the Internet or monitor their systems, orders 
that often are impossible to meet. Indeed, some, but not all, national 
laws place substantial limits on such orders. See, e.g., Section 512(j) 
of the Copyright Law of the United States (substantially limiting the 
scope of preliminary and final injunctive relief against Internet 
service providers).

Contrary to draft Article 6, assuming that choice of court agreements 
require knowledge and meaningful assent, we believe the general rule 
should be that such agreements also govern interim relief, unless such 
relief is specifically excepted. Such a rule would greatly advance the 
goal of ensuring business certainty that underlies the draft Convention.

We respectfully ask that you address these concerns as you continue to 
consider the draft convention.

Computer and Communications Industry Association (CCIA)

NetCoalition

Internet Commerce Coalition (ICC)

U.S. Internet Industry Association (USIIA)

U.S. Internet Service Provider Association (USISPA)

-- 
Manon Anne Ress
Consumer Project on Technology
www.cptech.org
PO Box 19367, Washington, DC 20036
manon.ress@cptech.org, voice: 1.202.387.8030, fax: 1.202.234.5176