[Hague-jur-commercial-law] Techdaily on The Hague

[Manon Ress]

 E-Commerce                                                                              

 Internet Providers Challenge Parts Of Jurisdiction 
Treaty                              
 by Ted 
Leventhal                                                                        

                                                                                         

      Several trade associations representing Internet service providers 
issued an open 
 letter to delegates who are drafting an international convention on the 
jurisdiction   
 over and enforcement of foreign judgments, including those in 
e-commerce. The groups   
 object to language that they argue is unnecessarily vague and would 
adversely impact   
 their member 
companies.                                                                
      The letter, addressed to delegates of the Hague Convention on 
Jurisdiction and    
 Enforcement of Judgments in Civil and Commercial Cases, was co-signed 
by the Computer  
 and Communications Industry Association, Internet Commerce Coalition, 
NetCoalition,    
 U.S. Internet Industry Association and U.S. Internet Service Providers 
Association.    
      It charges that the draft convention contains inadequate 
provisions governing     
 "choice of court" agreements that stipulate which country's courts will 
hear commercial
 disputes involving businesses and customers from different nations. The 
groups said the
 choice of venue should be subject to an agreement between parties in 
each case.        
      "If there is a hidden contract in works crossing our network, we 
want to ensure   
 that we are not bound to it, as we have neither seen it nor agreed to 
it," said Sarah  
 Deutsch, Verizon Communication's general 
counsel.                                      
      The current draft "contains ambiguities that could be construed to 
not even       
 require knowledge of a choice-of-court agreement or assent to the 
agreement," the      
 letter said. "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."                
      The ISPs took exception to language stating that a choice-of-court 
agreement      
 "shall be valid as to form" if it is made "in writing or by any other 
means of         
 communication which renders information accessible so as to be usable 
for subsequent   
 reference." That language, they said, means that ISPs may transmit 
information under an
 agreement unknown to them but that "may be in a form that is 
'accessible so as to be   
 usable for subsequent 
reference.'"                                                     
      Unless the issue is resolved, the groups concluded parties in 
disputes would be   
 subject to varying national copyright laws, a process currently allowed 
under terms of 
 the 1996 World Intellectual Property Organization 
treaty.                              
      Additionally, it is essential that ISPs not be held liable for the 
copyright      
 provisions protecting works transmitted by third parties, the letter 
said. ISPs also   
 object to language that they believe implies that interim relief may be 
sought from any
 court in any 
country.                                                                  
      The "copyright community" is supporting language on injunctive 
relief that ISPs   
 will not support, Deutsch said, adding that language saying a party 
could go forum     
 shopping to get broad injunctive relief against a service provider 
would be detrimental
 to ISPs. "On the Internet, that could literally take companies down," 
she said.        
      The letter was drafted by Bruce Joseph of Washington law firm 
Wiley, Rein and     
 Fielding.                                                                               


-- 
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