[Hague-jur-commercial-law] Second try from the hague April 24

[Manon Ress]

The IP meeting ended yesterday with 1) the withdraw of the Chinese
proposal (I guess Traditional Knowledge and Folklore)did not meet a lot of
sympathy) and the annoucement that there will be a working group IP
meeting tomorrow Sunday at the Permanent Bureau.
For some delegations how to deal with the issue of the incidental
questions should be left to national law and this would be a drafting
issue, for others it is a substantial issue since it's about allowing or
not the recognition of decision relating to the incidental question.  The
Convention does not require the enforcement of the decision but does not
"prohibit" it.  The proposal that came out of the Alexandria meeting was
seen as not clear enough on the issue and that will be discussed at the IP
working group on Sunday.  One delegation stated (again) that for them
there is no way to separate incidental and principal and the text was not
satisfactory.
Australia wanted to keep validity and infringement together and exclude
both from the convention.

The issue of an open versus closed list of IP exclusion from the scope
lasted quite a while.  As well as whether infringement should be in or 
out.
The International Chamber of commerce explained that a recent study showed
that most B2B contract with choice of court include IP related matters and
that it would be unworkable to exclude them.  A patent lawyer talked about
how infringement was neccessarily in for patent.  Surprisingly the IFPI
(the Recording industry) made a statement of support for the patent lawyer
(they do not have a "problem", copyright and copyright infringement is
absolutly covered,  I guess it was an IP collegial move?)
The US wants infringement included since bringing infringement has many
advantages (such as damages).
In the afternoon,  Australia stated that they had change there position to
exclude copyright but they needed stronger language in public policy
exception in 7 and 5.

This morning session was a "re reading" of articles 1, 2, 3 and 6 (but we
ended at Article1). More excluded matters in 1 were discussed.  China
wants "employment matters" to be added to the listof exclusion, the EC
want tenancies to be excluded, the US wants to add transport of
passengers....and Australia had a proposal stating  that :

The Convention shall not apply to exclusive choice of court agreements
a) where either or each party is a natural person acting primarly for
personal, family or household purposes or a non-profit organisation;or

The proposal was important because the first part of the sentence made
clear that if ONE party is a consumer it should be excluded.  The second
part that would exclude non profit was discussed for quite a while with
the predictable statements by the UK and some industry reps about "rich
and powerful non profits".  Mark Henkins, representing the International
Bar association stated that he represents small non profit  (?) and that
they want their judgments recognize all over the world too.   Judith Sapp
(INTA) supported Australia and stated that she represents small businesses
and that they are concerns with non negotiated contracts (click wrap etc)
and do not have the resources to defend themselves all over the world.  As
a matter of equity there should be support for the Australian proposal
which really was about unequal bargaining power.

However, the chair decided that this Australian proposal would NOT be
included in bracket in the text that will be drafted this afternoon by the
"drafting committee" but that Australia was to bring the issue back during
the diplomatic conference.  Althought some delegations objected to the
process, the Chair's decision did not change.
The one proposal that was trying to address the issue of unequal
bargaining power is gone.  I guess we live in a world where there 's only
fairly negotiated contract.

Monday there will be discussion on Article 5 and 7 and it looks as if "the
escape clauses"  will have to be re-visited.










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