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

[Manon Ress]

Hi Michael,
FYI Miriam Nisbet (ALA) is at The Hague Conference Special Commission 
Meeting. She is one of the Delegate for the US and is participating 
actively.
I cannot speak for Miriam but I am grateful to the US delegation for 
inviting me to participate in the debates. No other delegation (from ANY 
othe country) includes any public interest representative. Everyone on 
the US delegation knows my concerns about consumers and non-negotiated 
contract choice of forum clause.
My notes for this week meeting should be posted shortly.
Talk to you soon,
Manon
PS
Maybe your organization could ask for accreditation at the Hague 
Conference and come sit with the MPA/RIAA representative and the 
trademark owners rep (INTA)? We sure need support!

Michael Sondow wrote:

>The language in Article 6 regarding interim relief certainly appears
>unacceptable, one could even say outrageous, and I think consumer
>advocates would approve the protest made by the Internet coalition that
>sent the letter. I was concerned, though, that no consumer advocate
>groups were signees to it; nor does there seem to be any statement
>protesting the current wording of the unfair provisions on choice of
>court, which will certainly come back to bite us one day.
>
>What actually is the status of the consumer advocat groups at present?
>Are we supposed to sit idly by, under the pretext that we are not
>involved any longer in the negotiations, while a treaty is being written
>that will affect us negatively if the IP and business reps get their
>way?
>
>Where is the ALA, which in a way seems to have become our representative
>at these negotiations, in all this?
>
>It may be time for us who have kept abreast of the negotiations on the
>side of consumers to make our voice heard again.
>
>Manon Ress wrote:
>  
>
>>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)
>>    
>>
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>  
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-- 
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