[Hague-jur-commercial-law] FYI: Commitment To Jurisdictional Treaty Varies (Tech Daily)

[Manon Anne Ress]

Technology daily PM Edition
International Roundup: September 3, 2003
Commitment To Jurisdictional Treaty Varies
by William New


Nearly 30 nations have voiced support for a new beginning to 
negotiations for a global treaty on what nations can make and enforce 
judgments involving cross-border contracts. But their letters to the 
Hague Conference on Private International Law, which is overseeing the 
negotiation, show varied degrees of commitment to the draft text, which 
is to be the starting point.

The draft is a minimalist compromise reached by a small working party of 
representatives from participating countries. It is limited to "choice 
of court" clauses in business-to-business contracts that refer to which 
courts have jurisdiction over disputes. The original negotiations at the 
conference, begun 10 years ago, were significantly more ambitious.

In July, nations sent letters on whether to proceed with the negotiation 
based on the narrower draft, and the secretariat subsequently announced 
that a special commission would begin negotiations Dec. 1-9 in The 
Hague, Netherlands.

In their letters to the conference secretariat, the United States, Japan 
and Malaysia provided in-depth discussions of the draft and the 
negotiating process. U.S. lead negotiator Jeffrey Kovar of the State 
Department said in his submission that it is "essential that there be 
thorough consultation and coordination with public and private 
stakeholders worldwide."

Kovar said nonprofits, libraries and education organizations, as well as 
Internet service providers, have expressed concern about provisions on 
the validity of choice-of-court clauses. He also wrote that patent and 
trademark associations want to ensure that the provisions reflect "best 
international practices." Kovar said he is optimistic that the issues 
can be resolved through open negotiations and recommended that officials 
seek a consensus.

Japan said it believes an agreement on a smaller text would lead to 
further negotiations on other aspects of jurisdiction and enforcement of 
foreign judgments. The government submitted a 7-page analysis of 
problems in the existing draft. Malaysia also filed a 7-pager offering 
article-by-article suggestions and seeking more flexibility for 
governments that would implement a treaty.

The 15-nation European Union, meanwhile, was more tentative, offering 
only that the draft "may provide an adequate working basis for further 
discussions" and adding that "the content of the draft must be improved 
in a number of respects."

Australia noted that consideration of the draft "should not preclude 
subsequent work on the remaining issues with regard to jurisdiction, 
recognition and enforcement of foreign judgments in civil and commercial 
matters." Canada said it might file additional comments before the 
December negotiation. And China, once a possible holdout on the 
negotiation, said it agreed "in principle" to use the draft and assured 
the conference of "its highest consideration."

Other countries that filed comments included: the Czech Republic, 
Hungary, New Zealand, Poland, Romania, the Slovak Republic and Switzerland.

Manon Ress, a research associate at the Consumer Project on Technology, 
praised the U.S. letter. "I think that the U.S., by stating in their 
letter that they have heard the concerns of nonprofits, libraries and 
universities about the validity of choice-of-court clauses, and also 
that the U.S. considers consultation with the public essential, that's 
very good," she said.
"We also appreciate the substantial comments provided by Japan," Ress 
said. She added that the group plans to request more public consultation 
on non-negotiated contracts in the context of the convention, especially 
because the International Chamber of Commerce (ICC) managed to join a 
portion of the last negotiating meeting earlier this year. 
Non-negotiated contracts are built into product purchases, such as the 
downloading of software, and can be unfavorable to individuals and small 
businesses. They also can include choice-of-court clauses.

The ICC last week declared its relative contentment with the draft 
treaty. ICC Secretary General Maria Livanos Cattui said in a statement 
the draft document is "on the right lines."

A business group representative presented to Hague negotiators the 
results of a survey of 100 companies in which 40 companies said 
jurisdictional uncertainty affected business decisions. The 
representative, Michael Hancock of Salans in Paris, said the current 
draft would satisfy business expectations and strengthen the 
predictability of judgments by limiting the right of courts chosen for 
specific cases to dismiss proceedings.


-- 
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