[Hague-jur-commercial-law] Negotiations on the Hague Convention on Jursidiction: April 22, 2004

[James Love]

-------- Original Message --------
Subject: April 22, The Hague
Date: Thu, 22 Apr 2004 18:54:04 -0400
From: Manon Ress <manon.ress@cptech.org>

Today was a long day at the Hague where about 36 countries (93
delegates), the European community, WIPO, International BarAssociation,
INTA, IFPI, MPA and others met to discuss technical issues such as how
the convention would work for "regional Economic Integration
Organisations" (like the EU), and how to define "purely internal cases".
  What are the criteria? the rules?  Questions on what "habitual
residence" means, what are the rules to connect to a court...and  also a
discussion on whether the important "time" was when the contract was
entered or when the proceeding started...or both?  Is the convention
going to be narrow or broad?  This also came up during the discussion
about the final clauses.  Should we discuss a "reservation clause" ...or
not?  Not much consensus was achieved and most issues are left for the
diplomatice conference (in less than a year).

Several working documents relating to IP issues were distributed to be
discussed tomorrow:
Doc 59 EC proposal
Doc 68 China
Doc 64 Australia
Doc 63 US
Doc 62 Russian federation

Note that Russian federation and Australia were not represented at the
State department meeting in Alexandria in March.

The EC proposed:
The convention shall not apply to proceedings that have as their object
any of the following matters -
replace article 1,3 k) and l) by
x) Intellectual property rights except copyright and related rights and
except proceedings brought to enforce the terms of a
[contractual][licence or similar]agreement

The Russian Federation want to exclude:
k) the registration, validity or infringement of patents, trademarks,
protected industrial designs, layout design of intergrated circuits, and
of other intellectual property rights

The US:
k) the validity of  patents, trademarks, industrial designs -designs of
an integrated circuits, geographical indication, utility models or plant
breeder's right. (delete l))

Australia want to add to exclusion on validity exclusion on
infringement.  They explain that issue of validity and issue of
infringement are closely related so it is not practical to have one
court determine infringement and anothe court (a fortiori on another
jurisdiction) determine validity.  For Australia, the "international
problem would not normally arise since as patent is only effective in
its place of registration, it is unlikely that a suit against a licensee
would be brought in anothe jurisdiction.

China wants to exclude:
k) the validity of a patents, trademarks, registered industrial designs,
registered layout -designs of an integrated circuits, geographical
indication, utility model, traditional knowledge, folklore, undiscloses
information or plant varieties righ (delete l))
...
If Thailand was around we'd have "traditional medecine" too
probably...any way it's going to be lively (and complicated)
...
Also interesting was a Swiss proposal for article 19 whereby a state can
make a declaration to avoid an exclusive choice of court if (article 1)
the party has made a mistake, (article 2) because of fraud, (article 3)
threat, or (article 4) excessive advantage...no indication when that
will be discussed.
Manon

-- 
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