[Hague-jur-commercial-law] What is different in Article 1 (substantive scope) after First Diplomatic Conference?

[Judith]

It's not obvious how antitrust claims brought by a government entity
could be covered by a convention limited to choice of court clauses in
b2b contracts.  To the extent that an antitrust claim might be raised
defensively in a contractual case, the "incidental question" issue in
the intellectual property context may offer interesting parallels.  If
there is no provision in the convention barring consideration of
antitrust claims as incidental questions, courts may consider and decide
them under the "incidental question" blanket.  

Judith Sapp
Komondorok LLC
111 West Street
Portland, Maine 04102
United States of America

207.842.6003 Telephone
207.842.0743 Facsimile
judith@judithsapp.com Email


-----Original Message-----
From: hague-jur-commercial-law-admin@venice.essential.org
[mailto:hague-jur-commercial-law-admin@venice.essential.org] On Behalf
Of Kovar, Jeffrey D (SBU)
Sent: Monday, September 22, 2003 4:28 PM
To: Michael Sondow
Cc: rms@gnu.org; mress@essential.org;
Hague-jur-commercial-law@venice.essential.org
Subject: RE: [Hague-jur-commercial-law] What is different in Article 1
(substantive scope) after First Diplomatic Conference?

The problems are many.

There are substantial questions whether civil law countries would
consider
antitrust actions to be included within scope of the convention anyway,
since they are either brought by the government or arise from statutory
claims.  (Many countries will simply hand the convention over to their
courts without implementing legislation, and the judges are likely to
look
at it without the benefit of interpretative guidance.)  Furthermore,
treble
damages are unlikely to be enforceable in most countries under the
convention.  In addition, Justice and FTC are concerned that some
countries
might deny enforcement on public policy grounds.  

Thus, Justice and FTC believe that there will be little benefit to
including
antitrust (i.e., few judgments will be enforced), unless the inclusion
could
be made much clearer in Article 1 and Article 10, which other countries
are
not inclined to agree to.  On the other hand, Justice and FTC are sure
that
if we assume that antitrust is included, defendants will litigate
ferociously the prohibited list to try to get cases against them thrown
out
on jurisdictional grounds.  Thus, it will be mostly loss and little
gain.

> -----Original Message-----
> From:	Michael Sondow [SMTP:msondow@iciiu.org]
> Sent:	Monday, July 02, 2001 10:54 PM
> To:	Jeffrey D. Kovar
> Cc:	rms@gnu.org; mress@essential.org;
> Hague-jur-commercial-law@venice.essential.org
> Subject:	Re: [Hague-jur-commercial-law] What is different in
Article
> 1 (substantive scope) after First	Diplomatic Conference?
> 
> Jeffrey D. Kovar wrote:
> > 
> > It is Justice Dept and FTC antitrust offices who are insisting that
> > antitrust be excluded from the convention.  They are the major
> litigators
> > in this area.
> 
> What are their reasons? How do they justify it? And what do they use
> to convince the other treaty states having antitrust laws?
> 
> M.S.
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