[Hague-jur-commercial-law] Mark your calendar: IP& The HagueMarch 29-30 at USPTO

[Arvind T. Thattai]

Richard Stallman wrote:

> Does it imply that interim relief obtained in country A must be
> supported by country B?

No, it doesn't.  The enforcement and recognition provisions only 
apply to "judgments", and article 3(1) makes it fairly clear that a 
judgment is a "decision on the merits". I don't see any common law 
court holding that an order for provisional measures is a decision 
on merits.

However, what it is likely to do is create increased pressure on 
courts to liberalise the existing rules for the grant of interim 
relief, which are usually quite stringent.  The argument that will 
probably be made is that the Convention demands a higher level of 
comity and mutual recognition amongst signatories even in relation 
to orders that it does not expressly cover.  If made for long enough 
and hard enough, this argument may well have effect.

 > If not, how is this a change from the present?

I don't think it's supposed to be.  Article 6, as far as I can see, 
was included to pre-empt the Coopers v Atelier problem that arose in 
commercial arbitration, which led to US courts refusing to grant 
interim relief even in cases where the defendent only had assets in 
the US.  However, as I said above, it's likely to lead to increased 
pressure on courts to enforce interim awards out of comity. 
Conflicts generally is a very convoluted area of the law, and not 
many judges are sufficiently specialised in it.

The really big problem with the Article is that there is really no 
convincingly solid reason to treat interim relief differently from 
other proceedings when considering the effect of a forum selection 
clause.  But that's an entirely different issue which is not really 
relevant to the present discussion.

-- 
Arvind Thattai
Lecturer in Commercial Law
University of East Anglia
Norwich, NR47TJ
United Kingdom