[Hague-jur-commercial-law] Some preliminary comments on Selected provisions in new draft

[Michael Sondow]

First, though:

Manon Ress wrote:

> It looks as if there will be another Special Commission meeting (early
> next year) that will probably include an IP specific day (or 2?).

Can we find out who has been invited to attend the next meeting of the
"Special Commission" before it meets? The secret selection of these
people smells to me very much like the sudden appearance in 1999 of a
group of hitherto unknown people claiming to be the Board of the newco
(ICANN). Since all discussion of a draft is necessarily dependent on the
a priori drafting of the text, it certainly seems to me that a fair
representation in the "Special Commission" is fundamental to ensuring a
just Treaty.

Commentary:

> 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]

I assume there are other matters that are expressly excluded from the
scope of the Treaty. Any idea what they are? For example, are
consumer/business disputes specifically mentioned in this first Article?
If so, in what language?

> 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

The wording of this Article gets worse and worse as time goes on. How
can "entered into" and "evidenced" be used as though they were
interchangeable? It seems that the drafters intend to re-write the
dictionary. "Evidenced" and "entered into" are two totally different
concepts. And to use the disjunctive "or" here is wrong. It makes the
clause, on its face value, say that an exclusive choice of court
agreement is valid if it is evidenced, whether it has been entered into
or not. Pretty soon the lawyers for the ICC/MPA will dispense with
anything that suggests that agreements need be agreed upon, merely
published, like on some hidden webpage that no one has the URL to.
Section (b) above suggests that this is just what they have in mind.

> 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 than 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;

Let me see if I have this straight. A court other than the one named in
the agreement can try the case if the named court finds the agreement
invalid? That's what it says. What is this, a way of forum-shopping even
after a choice of court is made in an agreement, just in case the
agreed-upon court would be forced, under the law it applies, to throw
out an agreement?

Aren't these lawyers clever? They not only want their cake and to eat it
too, they want all cakes that will ever be baked by anyone anywhere.
Perfidy in the form of duplicitous language has reached new heights of
sinister intent. I am amazed. I take my hat off to them <heavy sarcasm>.

> b)a party lacked the capacity to enter into the agreement under the law
> of the State of the Court seised;

Ditto here.

> c) giving effect to the agreement would lead to a very serious 
> injustice;

How about "a really very serious injustice"? Or "a very serious
injustice indeed". Or, better yet, "an extremely, undeniably, and
uncontestedly serious injustice leading to unremediable harm to a party
stricken down by the a heinous agreement"?

What's wrong with simply "injustice"? Are there so many shades of this
idea? Is injustice now something to be bargained over? "A minor
injustice was done Louis, as the blade of the guillotine was not
sharpened before cutting off his head, and the poor wretch was made to
suffer unnecessarily while having his life wrenched from him in his
prime." 

Yes, indeedy, we are in big trouble these days here in the "civilized
world" when language no longer has any meaning.

> d)for exceptional reasons the agreement cannot be reasonably 
> performed;

What are these "exceptional reasons" that the drafters had in mind, I
wonder? Very curious.

> e) the chosen court has decided not to hear the case

Now, why would they do that?

This whole article is just more forum-shopping. What is interesting is
to see to what lengths the perpetrators of unnegotiated choice of court
agreements will go to protect themselves from all eventualities.

> 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.

I find this, well, revolting. These IP lawyers will have "their" judge
down the road who will issue injunctions against ISPs, website owners,
and anyone else they don't like, on demand:
 
- Hiya, yerhonor, how's tricks?
- So-so, Gus. How's the wife?
- Fine, fine. Listen, could you shoot us over another injunction right
away? Make it out for libertyandfreedom.net, okay?
- Sure, Gus. Anything to oblige. By the way, how's my paper "The Degrees
of Justice" doing at the Bar Association Journal? Are you guys gonna
print it? You know how much it means to me.
- Don't worry about a thing, yerhonor. Just get us that injunction down
here on the double, all right?
-Sure, Milt. Will do.

Satire aside, it's obvious that if there's going to be injunctive relief
from courts unnamed in agreements, there must perforce be an appeals
process and thus an appellate court, here an international one that can
rule on international jurisdiction. I've been harping on this all along,
and it has become clear that nothing about this Treaty will be workable
without it. An international appellate court is the only thing that can
keep the inanity of this treaty under some sort of control. Without it,
any court can make the life of a defendent unbearable with impunity.
It's the fear of an adverse appellate decision that keeps courts from
issuing unfounded requests for interim relief, and in the case of courts
outside the jurisdiction of an agreement (the Article says "any court"),
an international appellate court is the only type that can work.

> [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;

Huh? A court can now decide that an agreement is valid even when the law
the court exists to apply says it isn't? 

I really don't think it's such a good idea for the drafters of this
Treaty to keep working on it at Grogan's.

> b)a party lacked the capacity to enter into the agreement under the law
> of the requested State

Any IP lawyers reading this? I've got a great idea for you. Just put in
all your contracts that the court must be in State X, where State X has
a law that says that your clients can't enter into agreements having
exclusive choice of court provisions. Then, if you lose a case, you can
have the judgment thrown out by having the court suddenly realize that
the contract was invalid. Pretty clever, huh?

> d) the judgment was obtained by fraud in connection with a matter of
> procedure

Other types of fraud are acceptable.

> 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.

How about "very seriously manifestly incompatible"?

M.