[Hague-jur-commercial-law] Story on The Hague March 8, 2004

[Michael Sondow]

Manon Ress wrote:
> 
> *FYI:  Technology Daily March 8, 2004

<snip>

> China objected to the notion of
> procedural fairness in a footnote to the text.

This is actually very funny. Maybe there should be a pre-ratification
meeting at which delegates agreed that procedural fairness would not be
used as a criterion in judging validity of contracts or extra-national
court judgments. Would anyone object to this? I doubt it.

Seriously, though, what seems to have happened, as I suspected all along
it would, is that the supposed narrowing-down of the treaty has been
used as a means of unilaterally including elements in it which have had
no real discussion in its drafting. The fact that consumers will
eventually be considered as businesses under it, which already appears
to be generally accepted, and the idea that the treaty will apply to
Internet transactions even though it was supposedly agreed that the
Internet posed special problems beyond the original scope of the treaty
and should therefore not be included in negotiations, make this strategy
evident. 

These dirty tricks constitute the "big lie" of the treaty, which, like
all big lies, can be stuffed down people's throats because it throws
them so far off balance by its incredibleness that they are left
open-mouthed, astonished, and temporarily incapable of replying.

But the real danger and ugliness of all this is that the convention
usurps sovereignty. A nation's courts will no longer have the right to
decide for themselves whether a remedy - an action detrimental to one of
its citizens - should be applied. They will be forced to apply it just
because a court in another country says so. Why, you might just as well
disband national courts, set up a permanent Hague tribunal for
world-wide civil lawsuits, and empower Interpol to collect the
penalties. I'm sure this is exactly what the U.S. State Department,
which through NATO controls the Hague lock, stock, and barrel, would
like.

No doubt many states are going to refuse to knuckle under. Not everyone
in the world is ready for world government when there are no democratic
and just rules for it in place. You know, little things like appeals
courts, an international court of jurisdiction, and procedural rules for
forcing injunctive relief on foreign courts.

But, what the hell, if they won't give in we can bomb them.

M. Sondow
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      "Lawyers come to think of administrative law and the 
    administrative process as significant and worthy of study
    only in those areas where private interests think it worth
    their while to demand protection. As a consequence lawyers 
    seeking for their clients elaborate procedural protection 
    modeled on the judicial process may, in an excess of 
    generalizing zeal, induce legislatures, administrative 
    agencies, and courts to extend such procedures into areas 
    where they are alien and inappropriate."

                   -- Jaffe & Nathanson, "Administrative Law"
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