[Hague-jur-commercial-law] Story on the Hague in Washington Internet Daily

[Manon Ress]

Washington Internet Daily -- March 4, 2004

Positive Momentum
Delegates Could Finalize Hague Treaty Text Next Month

Talks appear to be moving quickly toward closure on a draft convention 
aimed at harmonizing jurisdiction in
e-commerce contract disputes, said a source close to the U.S. delegation 
to the Hague Convention on jurisdiction,
recognition and enforcement of foreign judgments in civil and commercial 
matters. U.S. nongovernmental organization
(NGO) delegates are set to meet Fri. with industry and govt. 
representatives in advance of a late April meeting
of the Special Commission of the Hague Conference on Private 
International Law, the source said.

Govts. are “swinging behind” the latest draft —which has been narrowed 
to cover only business-to-business
contracts containing choice of forum clauses — the source said. Despite 
the clear progress, however, consumer
and industry participants say several questions remain unresolved.

In Dec., Special Commission negotiators failed to agree on several “hot” 
issues (WID Dec 10 p4), including:
(1) Whether intellectual property rights other than copyright should be 
covered by the convention. (2) Whether a
country’s court should be allowed to handle a case involving an 
“incidental question” related to a trademark or
patent not granted by that country. (3) How the European Community will 
apply the treaty and work with existing
conventions. (4) How to deal with questions about enforceability of a 
choice of forum clause, particularly when a
library or NGO is involved and the contract is clickwrap or shrinkwrap.

Libraries, nonprofits and education groups remain worried about 
contracts they can’t negotiate, said American
Library Assn. Legislative Counsel Miriam Nisbet. The more-recent draft 
contains an “escape clause” to allow a
court to decline to enforce a contract term specifying another court to 
hear a dispute, she said. However, Nisbet
said, “the language is not ideal, does not refer explicitly to 
non-negotiated contracts, is supposed to be used in
‘exceptional’cases, and is subject to further change.” In addition, she 
said, ALA and others are concerned about
what “other IP rights” are excluded from the treaty and about Art. 6, 
which sets out interim measures and enforcement.
There’s much to be done, Nisbet said.

Negotiators’ key terms may be “party autonomy and predictability,” but 
NGOs’ are “public interest and fairness,”
said Manon Ress, of Essential Information. The weak “escape clause” — 
which lets courts decline to enforce
a choice of forum clause only in cases of “very serious injustice” — 
encourages forum-shopping, Ress said.
Big businesses’ “need for ‘predictability’ does not justify the creation 
of a world of total unpredictability for the
weaker parties,” she said.

Arts. 3 and 6 continue to frustrate ISPs, said Verizon Vp-Assoc. Gen. 
Counsel Sarah Deutsch. Special Commission
delegates improved Art. 3 in Dec., she said, but it continues to allow 
choice-of-court agreements to be evidenced
by, among other things, “any means of communication which renders 
information accessible so as to be
usable for subsequent references.” ISPs don’t want to be subject to 
copyright management information in the
form of hidden codes they never see, she said earlier. Art. 6 — which 
allows parties to ask courts for interim protective
measures — “remains unchanged and also is a concern,” she said, because 
ISPs don’t want plaintiffs forum-
shopping for temporary help from friendly courts.

Verizon also has concerns, along with trademark owners and noncommercial 
entities, with the provision barring
a court from dismissing an enforcement action brought in that country 
unless giving effect to the parties
choice-of-forum clause would lead to a “very serious injustice or would 
be manifestly contrary to fundamental
principles of public policy.” Does that mean a court must give effect to 
a judgment “if it results in a serious injustice
by not a very serious injustice?” Deutsch asked. It’s also unclear, she 
said, whether a court would have to enforce
a judgment contrary to public policy, but not manifestly so.

ISPs may have the chance to voice their concerns at a meeting for 
high-tech companies, the source close to the
U.S. delegation said. IP issues raised by the draft will be the topic of 
an informal meeting later this month at the
U.S. Patent & Trademark Office. The Hague Special Commission meets April 
21-28 to try to fill holes in the text.
If delegates are successful, a final diplomatic conference on the treaty 
could come in late 2004 or early 2005. The
meeting will bring Hague delegates together with industry, trade 
associations, bar associations, NGOs and other
interested parties to consider in greater depth aspects of the treaty 
bearing on IP interests and concerns, the PTO
said. The public session runs 9 a.m.-5 p.m. March 29, with delegates 
convening as a drafting “seminar” the next
day, the PTO said. — Dugie Standeford

-- 
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