[Hague-jur-commercial-law] Last day at the Hague

[Manon Ress]

We have a draft for a convention on exclusive choice of court agreement. 
Working document 110.  I do  not have an electronic copy but will fax it
to you when I get back if you’d like.

The draft has 13 pages.  27 articles and a recommended form, 5 chapters
including I scope and definition (art. 1-3), II Jurisdiction (Art 4-6),
III Recognition and Enforcement (7-12), IV general clauses 13-19, V Final
clauses (20-27).

It looks like convention.  With a few brackets (about 8) and a few
footnotes (only 10 or so).  The drafting committee is meeting again to
finalize and they might be 2 more footnotes.

The final morning session started with the chair’s statement:

Time is limited, too limited to make great stride today and it is
important that we have a document for consultation between now and the
diplomatic conference.  The diplomatic conference (early next year) will
be preceded by private consultation to fix some of the remaining problems.

There will be a revised report.  The rapporteurs will include the
important point.  No date for that but probably before the summer.

The Chair of the drafting committee presented the draft.  It has a new
structure there’s now an article 1 and 1 bis because the drafter wanted a
rule that the convention only applies in international cases but it was
not easy to get a definition of what is truly an international case.  Some
of the language in 4 and 5 (on internal cases) were replaced by the
definition.  In Article 3, it used to say that a case was internal “only”
if all the elements connected to ONE State.  But this could be an
artificial rule and the “only” was taken out.  The time factor (at the
time of the agreement and/or at the time of the proceeding) is in bracket
because there was no agreement.

The chair of the IP working group described the IP proposal.
IP is the most contentious issue because it’s important economically. 
Basically all agreed on the policy and nobody wants validity to be
included.  Many did not want infringement.  All agreed that licensing is
in.

Then there was the issue of the list of IPRs.  The US wanted a close list
and the EU an open list for future IPRs.  The proposal is in bracket
because there was no agreement.  It is now an open list with a distinction
for copyright and related rights which are fully included (validity and
infringement).

All other rights are excluded (subject to exception for contracts that
license or assign IPRs…any proceedings are included in the scope).

The Chair explained it was important for the US because a breach of
contract would be brought to a state court while a suit in tort would be
brought to federal court.

The chair later mentioned that China had problems relating to the
protection of TK and Folklore and that will be in the report.

The validity as incidental question is almost solved.  There’s a European
proposal about a possible “stay”.  In Japan and Germany, if validity is
raised, the court stays the proceedings and sends the question to a
specialized agency (PTO).

The working group on Article 5 (jurisdiction rules) produced a paper that
will be in the final draft.  These rules are the most controversial and
there was little progress.

In 5 a) the group decided that it would be the law of the state chosen
that decides if the agreement is null and void (NOTE: I was told there
would be a footnote reflecting our concerns that that should be decided by
the court seized).
To summarize, the jurisdiction rules are still controversial and the group
could not agree on policy.  There are 3 variants (US, EU and Switzerland)
and 2 could maybe be combined.  However, the working group had to stop at
this point.  d) e) will be discussed again

There was discussion on non unified legal system and on disconnection
(progress were made) and the US asked for a footnote under Article 10
(damages) a remainder of the 99 draft that would create a fundamental
obstacle for the US (it should be deleted for the US).

After a few point of order (what goes into the draft?  What goes into a
footnote, or in bracket, *some delegations* ‘ proposals are not being
taken into account)…it became clear that the Chair was not going to let
“new” or “isolated” proposals be included.  The text IS complicated as is,
he said.

The “model” ie The New York convention on arbitration is much simpler…but
as the Chair said “there’s now a basis for a diplomatic conference…with
many open questions”.  He urged some delegations to get together between
now and then and wants the draft to be simplified.

I’m not sure how that’s going to happen.  But things are moving ahead.

Manon