[Hague-jur-commercial-law] Miriam Nisbet (ALA) Summary of
Dec 1-9, 2003 Meeting at The Hague
sarah.b.deutsch@verizon.com
sarah.b.deutsch@verizon.com
Thu, 18 Dec 2003 16:30:43 -0500
Do we have an official version of the latest draft to look at?
Thanks
Sarah
Sarah B. Deutsch
Vice President & Associate General Counsel
Verizon Communications
Phone: 703-351-3044
Fax: 703-351-3670
sarah.b.deutsch@verizon.com
|---------+--------------------------------------------------->
| | "Manon Ress" <manon.ress@cptech.org> |
| | Sent by: |
| | hague-jur-commercial-law-admin@venice.es|
| | sential.org |
| | |
| | |
| | 12/18/2003 02:59 PM |
| | |
|---------+--------------------------------------------------->
>--------------------------------------------------------------------=
--------------------------|
| =
|
| To: haguelist <Hague-jur-commercial-law@venice.essentia=
l.org> |
| cc: =
|
| Subject: [Hague-jur-commercial-law] Miriam Nisbet (ALA) Summ=
ary of Dec 1-9, 2003 |
| Meeting at The Hague =
|
>--------------------------------------------------------------------=
--------------------------|
Miriam Nisbet wrote:
I just returrned last week from The Hague, as a member of the U.S.
delegation - ALA requested representation in 2001 and the request was
granted this fall. Attached is a summary of what the draft convention
concerns, background, highlights of current draft, etc. that AFFECT
members might find helpful. It does look like the convention is moving=
again, albeit in a much narrowed way. Miriam
Miriam M. Nisbet
Legislative Counsel
American Library Association
1301 Pennsylvania Ave. NW - #403
Washington, D.C. 20004-1701
Voice: 202-628-8410, x. 202,
or 800-941-8478, x. 202
Fax: 202-628-8419
e-mail: mnisbet@alawash.org
http://www.ala.org/washoff
December 2003
Miriam Nisbet, ALA Legislative Counsel
Draft Hague Convention on Exclusive Choice of Court Agreements (formerl=
y
the draft Convention on Jurisdiction and Enforcement of Judgments in Ci=
vil
and Commercial Cases)
What is the draft Hague Convention? The Hague Conference on Private
International Law is an intergovernmental organization, with 64 Member
countries, which was established over a hundred years ago to negotiate =
and
draft multilateral treaties or Conventions in the different fields of
private international law.
One of the draft conventions (agreements) under negotiation for a decad=
e
has been the Hague Convention on Jurisdiction and Enforcement of Judgme=
nts
in Civil and Commercial Cases. This convention would create jurisdicti=
onal
rules governing international lawsuits and provide for recognition and
enforcement of judgments by the courts of Member States. Member States=
, of
which the U.S. is one, would be required to recognize and enforce judgm=
ents
covered by the Convention. The library community has been following the=
development of this convention for several years because of the importa=
nce
of jurisdictional matters, particularly those concerning contracts and
intellectual property rights.
What is the background of the Convention? Discussions on the draft
Convention (treaty) began in 1992 and several meetings have been held s=
ince
then to consider varying drafts. Finally, in 2002, lead delegates from=
the
Hague Conference member countries agreed over the next year to draft a
scaled-down convention based on less controversial "core" provisions. =
In
March 2003 a small Working Group produced a new, narrower draft treaty =
for
consideration by the member countries.
In the summer of 2003 the Hague Conference on Private International Law=
announced that the member countries had agreed to go forward with tryin=
g to
draft a convention that would apply only to cases in which business and=
commercial parties have chosen a court (or "forum") in their contract (=
so
called "B2B contracts"). The draft convention would make such "choice =
of
court" terms in contracts (including those governing copyrighted materi=
als,
such as software) enforceable if the parties resort to the courts to se=
ttle
a legal dispute. The convention would also ensure that judgments rende=
red
by the courts designated in such agreements are enforced by other court=
s.
(For example, the assets of a losing party may be in a country other th=
an
the one where the judgment was rendered, making it necessary for the
winning party to have the judgment, awarding money to the winner, enfor=
ced
subsequently in another court.)
Why are libraries concerned about the draft convention? Although the
draft convention has been scaled down considerably, many groups, includ=
ing
libraries and the business community, continue to be concerned about te=
rms
in non-negotiated contracts and licenses, which allow the licensor to
designate in advance which court will hear the parties' disputes. For
example, library groups wrote a letter to the head of the U.S. Delegati=
on
to the Hague Conference in June 2003, setting out library concerns with=
the
draft convention on choice of court agreements. [See letter of June 13=
,
2003 in Related Files] The library letter pointed out that terms in
non-negotiated contracts and licenses, which allow the licensor to
designate in advance which court will hear the parties' disputes, remai=
n a
significant and controversial issue for many groups, including librarie=
s
and the business community. The draft convention does not change the
underlying substantive law of contracts of the Member Countries. Howev=
er,
some critics are concerned that contracts falling under the terms of th=
e
treaty (including non-negotiated contracts) will be more easily
enforceable.
NOTE: Although some language in the latest draft convention (see below)=
is
helpful in addressing the concerns about non-negotiated contracts, thes=
e
issues and others remain. For further background on the controversy
surrounding non-negotiated "shrink-wrap" or "click-wrap" contracts, tur=
n to
our UCITA pages. [LINK] One proposed provision in the amendments to
Article 1 of the Uniform Commercial Code, that began circulating in sta=
te
legislatures in 2002, reflect the same kind of thinking about choice of=
forum and choice of law clauses seen in the original drafting of UCITA.=
What is the status of the Convention? In 2001 ALA requested the
Department of State to include a library representative on the U.S.
Delegation to The Hague. In 2003, the State Department invited Miriam
Nisbet, ALA Legislative Counsel, to participate as a Private Sector Adv=
isor
on the U.S. Delegation at a special meeting in The Hague, December 1-9,=
2003, to continue negotiations on the draft convention on choice of cou=
rt
agreements. A new draft emerged from the meeting and negotiations are =
to
continue in Spring 2004, possibly to be concluded in a Diplomatic
Conference to approve the treaty by the end of 2004.
The new draft Convention on Exclusive Choice of Courts Agreements will =
be
available soon on the Hague Conference web page,
http://www.hcch.net/e/workprog/jdgm.html. Here are the highlights of t=
he
draft that are most pertinent to libraries.
The convention is intended to provide certainty that courts have
jurisdiction to hear disputes between business and commercial parties w=
ho
have entered into a contract (B2B contracts) and that the courts of oth=
er
countries will recognize and enforce the judgments issued by those cour=
ts.
The convention applies to commercial contracts that specify that if the=
re
is a dispute between the parties to the contract, the proceedings will =
be
heard and decided by a particular court (or the courts of one particula=
r
country). Such clauses or agreements in contracts are called "exclusiv=
e
choice of court" agreements.
Commercial contracts for copyrighted materials are covered by the
convention. The convention does not apply to proceedings that mainly
concern a dozen other specified matters including the validity of other=
intellectual property rights.
An earlier draft of the convention contained an Article 3 (Formal Valid=
ity)
that seemed to suggest that any choice of court clause meeting the
requirements set out in the article would be considered a valid contrac=
t.
[See libraries' letter of June 13, 2003 in Related Files] That article=
has
been eliminated in an attempt to remove that confusion. Whether an
underlying contract is substantively valid ? for example, whether one p=
arty
has assented to certain terms ? is left up to the law of the court hear=
ing
the dispute. The convention requires only that the choice of court
agreement be in writing (including electronic).
The general rule, with exceptions, is that the court chosen in the part=
ies'
agreement should hear the dispute brought before it.
The general rule is that if the dispute is brought before another court=
(other than the one designated in the agreement), that court will decli=
ne
to hear the case. Again, there are exceptions, including that "giving
effect to the agreement would lead to a very serious injustice or would=
be
manifestly contrary to fundamental principles of public policy." This =
type
of escape clause is important for parties who want to challenge the
enforcement of a choice of court clause, though the current language is=
less than desirable.
The general rule with some exceptions - is that once the court designa=
ted
in the exclusive choice of court agreement has issued a judgment, that
judgment will be recognized or enforced by other courts of the Hague Me=
mber
Countries.
_______________________________________________
Hague-jur-commercial-law mailing list
Hague-jur-commercial-law@lists.essential.org
http://lists.essential.org/mailman/listinfo/hague-jur-commercial-law
=