[Hague-jur-commercial-law] FYI: Techdaily on The Hague Project

[Manon Ress]

Techdaily December 16, 2003 PM Edition

Negotiators See Progress On International Jurisdiction Treaty
by William New

Negotiators from around the world have agreed to pursue a much-narrowed 
version of the convention
on jurisdiction and the enforcement of cross-border contracts under 
consideration since 1999 or
before. And this time, they think it might really happen.

"The most important thing was the meeting confirmed that there would be 
a convention on choice of
court [for settling disputes] and enforcement of judgments," said a 
source close to the negotiations,
which occurred in The Hague, Netherlands, from Dec. 1 to 9.  The effort 
finally has become like a "shared project,"
the source said.
    
A key to the breakthrough was Europe's ability to resolve internal 
issues about giving the lead in
the negotiations to the European Union, he said. For the first time, 
Europe collectively agreed to
a narrower draft treaty.
    
The convention now would be limited to enforcing the choice-of-court 
clauses within business-to-business contracts
that identify which court would have jurisdiction if a dispute arises.  
It also would enforce judgments made by those courts.

This is significantly less ambitious than the original negotiations 
under the Hague Conference on
Private International Law set out to be. It does not exclude returning 
later to more controversial
issues, such as business-to-consumer contracts, sources said.

The draft convention only recognizes choice-of-court clauses that 
identify one court exclusively.
It would not recognize clauses giving jurisdiction for disputes to more 
than one court, which some
European countries opposed, one source said.

Intellectual property issues also were advanced but were not resolved 
due to their complexity,
a source said. The group agreed to exclude from the convention's scope 
the validity of patents,
trademarks, protected industrial designs and layout designs of 
integrated circuits, and to include
copyrights. But they did not conclude talks on other possible 
intellectual property exclusions.
The complexity appears in trying to solve disputes over licenses in 
other countries, such as failure
to pay royalties, which negotiators want the treaty to cover. If the 
violator in such a case argues,
for instance, that the patent is not valid, it might prevent application 
of the treaty.

Other issues debated during this month's talks included how to determine 
whether a choice-of-forum
agreement is valid and on what grounds a court could enforce it, the 
source said. Another provision
attempts to address what is covered by stating that issues are not 
excluded if they arise "merely as
an incidental question" -- that is, if they are not the principal aspect 
of the litigation.

"We are pleased with the constructive tone of the negotiations," said 
U.S. negotiator Jeffrey Kovar
of the State Department. "We now look forward to working closely with 
American stakeholders to review
closely this new draft and prepare for the future discussions in The Hague."

Informal consultations between the U.S. negotiators and U.S. 
stakeholders on intellectual property
issues are being considered for January or February at the Patent and 
Trademark Office. Negotiators
are eyeing another round in March or April in The Hague, with a 
tentative final meeting in late 2004.


-- 
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