[Hague-jur-commercial-law] Press on The Hague Special CommissionMeeting Dec1-9, 2003

[Michael Sondow]

Manon Ress wrote:

> Choice of forum clause in contracts, ALL contracts are included unless
> specifically excluded (like employment contracts) and of course contract
> on the internet are NOT excluded (see Article 1 Scope).

But contracts between consumers and businesses are excluded? Or only by
inference, so that consumers and non-profits can be kept from
influencing the writing of the treaty, but then included in its rules?

> Which is why
> some observers are concerned about choice of forum clauses in non-
> negotiated contracts (click-on and others kind of contracts you have to
> sign when on the internet) and anxious to see good "escape clauses" if a
> contract is unfair or unjust.

All contracts on the Internet are unfair and unjust, as they are written
by one party to protect itself, whereas the other party receives no
protection from the contract whatsoever.

> As to why it's included...some say you cannot separate e-contracts from
> other contracts

Sure they can. Contracts that are written and signed give both parties a
chance to object and negotiate. Internet contracts afford no such
opportunity.

> some say solving some aspects of the "internet
> jurisdiction" problem  is actually one of the treaty (and Hague
> Conference)' goals

Since when? They didn't even realize there would be such a thing as
click-to-sign Internet contracts when the Hague Convention was first
introduced. And this Convention has never dealt openly with any of the
very seriously ambiguous problems of Internet jurisdiction, not even as
far as WIPO has tried to do. It's nothing but a pretentious ruse for the
Hague to claim any such concern as clarifying Internt jurisdiction. It's
absurd, and an insult to those who have been attempting arduously and
sincerely to unravel it.

> others talk about the need of specific stakeholders
> (think of what people buy on the internet: software, music and other
> copyrighted goods)

That reminds me of Prohibition, or the War On Drugs. The more
ill-thought-out rules and treaties and laws that are passed, the more
money can be made for those who figure out how to get around them. The
only purpose the Hague Convention will serve, insofar as cross-border
consumer/business disputes is concerned (and probably for many
business/business disputes as well), is to make it impossible or
prohibitively expensive to seek justice. Again, this is just what the
business lawyers who are writing it want.

> whatever the reasons, I wish  electronic
> contracting was out  (and maybe let UNCITRAL work on that?) but > it's in.

Well, they can write anything they please into it. That doesn't mean
it's going to work.

> A choice of forum clause in a contract is valid if entered in writing
> "or by any other means of communication".

Speach? Morse code? Deaf sign-language? Semaphore?

> Unless a court decide that "giving effect to the agreement would lead to
> a very serious injustice or would be manifestly contrary to fundamental
> principles of public policy".....well, not that often, right?

Isn't it a "very serious injustice" for people to be forced to take
legal action in a country chosen by their adversary? Because that is
exactly what this Convention is proposing.

M. Sondow
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        International Congress of Independent Internet Users (ICIIU) 
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