[Hague-jur-commercial-law] More on meeting re The Hague Contract Convention

[Manon Ress]

To anyone who "agrees" and "click/signs" contract online:
(sorry for crosslisting this but this might be our last chance to 
discuss the draft before the diplomatic conference with the US delegation)

Thanks to Miriam Nisbet, there will be a roundtable discussion on The 
Hague developments on Mon.
January 26, 2004 from 12:30 - 2:30 p.m. at the ALA Washington Office,
1301 Pennsylvania Ave. NW, Suite 403. Please bring a brown bag lunch.

Jeff Kovar of the U.S. State Department and other members of the U.S.
delegation will be present.

See new Draft: ftp://ftp.hcch.net/doc/workdoc49e.pdf

QUOTE from highlights in ALA Memo:

The convention is intended to provide certainty that courts have 
jurisdiction to hear disputes
between business and commercial parties who have entered into a contract 
(“B2B contracts”)
and that the courts of other countries will recognize and enforce the 
judgments issued by
those courts.

The convention applies to commercial contracts that specify that if 
there is a dispute
between the parties to the contract, the proceedings will be heard and 
decided by a
particular court (or the courts of one particular country). Such clauses 
or agreements
in contracts are called “exclusive choice of court” agreements.

Commercial contracts for copyrighted materials are covered by the 
convention. The
convention does not apply to proceedings that mainly concern a dozen 
other specified
matters including the validity of other intellectual property rights.

An earlier draft of the convention contained an Article 3 (“Formal 
Validity”) that seemed
to suggest that any choice of court clause meeting the requirements set 
out in the article
would be considered a valid contract. [See libraries’ letter of June 13, 
2003 on the Hague
pages at www.ala.org/copyright] That article has been eliminated in an 
attempt to remove
that confusion. Whether an underlying contract is substantively valid – 
for example,
whether one party has assented to certain terms – is left up to the law 
of the court hearing
the dispute. The convention requires only that the choice of court 
agreement be in writing
(including electronic).

The general rule, with exceptions, is that the court chosen in the 
parties’ agreement
should hear the dispute brought before it.

The general rule is that if the dispute is brought before another court 
(other than the one
designated in the agreement), that court will decline to hear the case. 
Again, there are
exceptions, including that “giving effect to the agreement would lead to 
a very serious
injustice or would be manifestly contrary to fundamental principles of 
public policy.”
This type of escape clause is important for parties who want to 
challenge the enforcement
of a choice of court clause, though the current language is less than 
desirable.

The general rule – with some exceptions - is that once the court 
designated in the exclusive
choice of court agreement has issued a judgment, that judgment will be 
recognized or
enforced by other courts of the Hague Member Countries.
END OF ALA QUOTE

In addition to the issues related to the weakness of proposed "escape 
clause" when facing a choice of forum in
a non-negotiated contract, there are issues about what is "excluded" 
from the scope (Article 1 (3
(k) & 1 (4) and interim measures and enforcement (article 6).

If any of you would like to add a specific issue, let me know soon.

Manon Ress
1 202 387 8030
mress@essential.org


NOTE ALA Contact for meeting:
Miriam M. Nisbet
Legislative Counsel
American Library Association
1301 Pennsylvania Ave. NW - #403
Washington, D.C. 20004-1701
Voice: 202-628-8410, x. 202,
or 800-941-8478, x. 202
Fax: 202-628-8419
e-mail: mnisbet@alawash.org
http://www.ala.org/washoff



-- 
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