[Hague-jur-commercial-law] Selected provisions in new draft
Manon Ress
manon.ress@cptech.org
Mon, 08 Dec 2003 08:00:38 -0500
Re the new draft. Document 39 distributed this morning covers 1 thru
10. Very few brackets (see below for selection). I'll send copies to
anyone interested when I get back to the office on Thursday. By then we
might have a "complete" draft ie 27 articles?
It looks as if there will be another Special Commission meeting (early
next year) that wil probably include an IP specific day (or 2?). Then,
a report has to be drafted by the Bureau and I do not know when Andrea
Schulz will make it available. In any case, I doubt it will be ready
early enough to have diplomatic conference in June 2004. Gossip here is
December 2004 would be an appropriate time but I do not know.
Note selected language:
In Article 1 Scope:
3. This convention shall not apply to the proceedings that have as their
main object any of the following matters-
[SNIP]
k) validity of patents, trademarks, protected intellectual designs, or
layout-designs of integrated circuits;
l) [validity of other intellectual property rights, the validity of
which depends on, or arises from, their registration, except copyrights];or
m) validity of entries in public registers.
[SNIP]
In Article 2 Exclusive choice of court agreements
[SNIP]
3. An exclusive choice of court agreement must be entered into or evidenced-
a) in writing; or
b) by any other means of communication which renders information
accessible so as to be usable for subsequent reference
[SNIP]
4. Proceedings are not excluded from the Scope of the Convention if a
matter referred in paragraph 3 arises merely as an incidental question.
In Article 5 Priority of the Chosen Court
If the parties have entered into an exclusive choice of court agreement,
a court in a Contracting State other thatn the State of the chosen
court shall suspend or dismiss the proceedings unless-
a) the agreement is null and void under the law of the State of the
chosen court;
b)a party lacked the capacity to enter into the agreement under the law
of the State of the Court seised;
c) giving effect to the agreement would lead to a very serious injustice;
d)for exceptional reasons the agreement cannot be reasonnably performed;
e) the chosen court has decided not to hear the case; or
f) the parties are habitually resident [only] in the State of the court
seised, and the relationship of the parties and all other elements
relevant to the dispute, other than the agreement, are connected with
that State.
Article 6 Interim measures of protection
Nothing in this convention shall prevent a party from requesting an
interim measure of protection from any court or prevent a court from
granting such a measure under the law of the State of the court.
Article 7Recognition and Enforcement 1
(Footnote 1: Recognition and enforcement of judgments where a matter
referred to in Art 1 (3) has arisen as an incidental questions remains
to be discussed)
[SNIP] Recognition or enforcement may be refused only on the following
grounds-
a) the agreement was null and void under the law of the State of the
chosen court, unless the chosen court has determined that the agreement
is valid;
b)a party lacked the capacity to enter into the agreement under the law
of the requested State;
c) the document which instituted the proceedings or an equivalent
document, including the essential elements of the claim, was not
notified to the defendant in sufficient time and in such a way as to
enable him to arrange for his defence [or was not notified in accordance
with the law of the State where such notification took place] [, unless
the defendant entered an appearance and presented his case without
contesting notification in the court of origin, provided that the law of
the State of origin permitted notification to be contested];
d) the judgment was obtained by fraud in connection with a matter of
procedure;
e) [escape clause? cf Art 5 (c)]
f) recognition or enforcement would be manifestly incompatible with the
public policy of the requested State, in particular if the specific
proceedings leading to the judgment were incompatible with fundamental
principles of procedural fairness of that State. 2
(Footnote 2: The drafting committee was not able to accomodate the
concerns of one member with respect to this paragraph, and considers
there is an issue to be resolved. An alternative text was suggested:
f) recognition or enforcement would be manifestly incompatible with the
public policy of the requested State where the specific proceedngs
leading to the judgment were seriously unjust with respect to procedural
fairness,)
sarah.b.deutsch@verizon.com wrote:
>Does anyone know when we will get to see the next working draft? We
>should talk on this list about how to coordinate a much better response
>from many diverse stakeholders after we have a chance to see the results
>from this meeting. One of the downsides from having Miriam or Manon as
>part of the US Delegation is that I don't believe the rules allow them to
>lobby the other delegates -- they can only work within the US Del. We'll
>need to get many more NGOs to the next meeting. Even if they don't want
>you there, it is fairly easy to become accredited.
>
>Sarah
>
>Sarah B. Deutsch
>Vice President & Associate General Counsel
>Verizon Communications
>Phone: 703-351-3044
>Fax: 703-351-3670
>sarah.b.deutsch@verizon.com
>
>
>
>
>|---------+--------------------------------------------------->
>| | "Judith Sapp" <judith@judithsapp.com> |
>| | Sent by: |
>| | hague-jur-commercial-law-admin@venice.es|
>| | sential.org |
>| | |
>| | |
>| | 12/07/2003 12:54 PM |
>| | |
>|---------+--------------------------------------------------->
> >----------------------------------------------------------------------------------------------|
> | |
> | To: "'Michael Sondow'" <msondow@iciiu.org>, "'Hague list'" |
> | <hague-jur-commercial-law@venice.essential.org> |
> | cc: |
> | Subject: RE: [Hague-jur-commercial-law] Open Letter to Delegates |
> >----------------------------------------------------------------------------------------------|
>
>
>
>
>7 December 2003
>
>Dear Michael:
>
>This is a personal response rather than an official INTA response. INTA
>submitted comments on the working draft that raised serious concerns about
>Article 3. These concerns have been ignored by the US and the EU. They
>were addressed by a Swiss proposal which the US and the EU did not accept
>or
>even take seriously. From what has happened this past week, I think it is
>fairly clear that the next working draft will be even worse than the last
>one. It will, for example, incorporate a joint US-EU proposal on Article 5
>that will require a court other than the chosen court to decline
>jurisdiction unless, inter alia, "the application of the agreement would
>lead to a very serious injustice." Injustice is ok. Serious injustice is
>ok. Only "very serious injustice" is a problem.
>
>I hope that INTA will agree officially that this is outrageous.
>
>Best regards, Judith
>
>Judith Sapp
>Komondorok LLC
>111 West Street
>Portland, Maine 04102
>United States of America
>
>207.842.6003 Telephone
>207.842.0743 Facsimile
>judith@judithsapp.com Email
>
>
>-----Original Message-----
>From: hague-jur-commercial-law-admin@lists.essential.org
>[mailto:hague-jur-commercial-law-admin@lists.essential.org] On Behalf Of
>Michael Sondow
>Sent: Saturday, December 06, 2003 7:40 PM
>To: Hague list
>Subject: Re: [Hague-jur-commercial-law] Open Letter to Delegates
>
>Hi, Manon. Nice to hear from you.
>
>I'm very sorry if my remarks were interpreted as a lack of confidence,
>as your reply suggests they may have been. I surely did not mean to
>imply that the people like yourself and Miriam Nesbet who are holding
>down the fort for the rest of us were not doing a great job.
>
>What I did mean to suggest was that, from the sound of the protest
>letter from the net coalition, things have arrived at a critical pass.
>When an RIAA/MPAA rep can leave the negotiations, sure that their
>outrageous wording will prevail, it makes me think that, short of a
>mobilization, this ugly piece of international legislation is going to
>get rammed through after all, a finality which upsets me very much.
>
>You wrote:
>
>
>
>>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!
>>
>>
>
>I don't think the ICIIU can be accredited. It simply hasn't the
>credibility and, after the ICANN fiasco, has lost its adherents and much
>of its raison d'être. If I thought there were any chance of my being
>able to grapple again with the MPA/RIAA and the INTA, I would take it,
>rest assured. But trying to accredit the ICIIU won't work, I'm afraid.
>The Hague secretariate has made it clear, through their choice of
>invitees to their meetings, that they aren't interested in having
>consumer advocates join in the proceedings, and even if they were the
>ICIIU has no status or repercussion to do so. What's needed at the Hague
>convention negotiations is some sort of coalition of international
>consumer representatives with perhaps the international cooperative
>movement. That would have some clout.
>
>We made the mistake of not trying to organize an international
>resistance from among such groups long ago, and now it is undoubtedly
>too late.
>
>M.
>
>You wrote:
>
>
>
>>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.
>>
>>
>_______________________________________________
>Hague-jur-commercial-law mailing list
>Hague-jur-commercial-law@lists.essential.org
>http://lists.essential.org/mailman/listinfo/hague-jur-commercial-law
>
>
>
>_______________________________________________
>Hague-jur-commercial-law mailing list
>Hague-jur-commercial-law@lists.essential.org
>http://lists.essential.org/mailman/listinfo/hague-jur-commercial-law
>
>
>
>
>
>
>
>
>
--
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