[Hague-jur-commercial-law] Discussion on Exclusions

[Miriam Nisbet]

Just a quick note from The Hague.  I wish I could provide more cheerful =
news.  There are still some outstanding issues here, even though this is =
the last day of negotiations.  However, non-negotiated agreements (such as =
shrinkwrap and click-on) are still within the scope of the Convention.  No =
express exclusion for them and I don t expect that to change.  As for =
relief from choice of court terms in business to business contracts, =
whether they are negotiated or not, the so-called escape clauses are =
fairly limited.  The circumstances under which a court other than the =
court named in the contract can refuse to enforce a choice of court term =
include `null and void under the law of the chosen court , manifest =
injustice or manifestly contrary to public policy.  A bit of improvement =
over the old text, though not much.  Will send a more detailed report when =
I return next week.  Miriam


Miriam M. Nisbet
Legislative Counsel
American Library Association
1301 Pennsylvania Ave. NW - #403
Washington, D.C. 20004-1701
Voice:  202-628-8410, x. 202,=20
        or 800-941-8478, x. 202
Fax:     202-628-8419
e-mail:  mnisbet@alawash.org
http://www.ala.org/washoff
>>> "Manon Ress" <manon.ress@cptech.org> 06/22/05 8:32 AM >>>
It=B4s getting hot in The Hague, not only because of the sun but because =
the
delegates have to move fast now and they are getting in the less
consensual areas.

The rules of the convention, jurisdiction, recognition and enforcement
rules, are now set up (at least until second reading of the draft in the
next few days)which means delegates know how the convention will work. The
flexibilities or limitations on flexibilities have been defined.

Today, the delegates are focusing on what should be in article 2 dealing
with the excluded matters, the "Exclusions from Scope".  The list has
always been long (14 items) and might be getting longer.  Maybe longer
because the drafting committee has proposed the new article 20, the
declaration article, by which states can decide to exclude some specific
matter if there=B4s a strong state interest.  So, each time a delegation
wants to add a possible exclusion or broaden an existing exclusion, the
other delegations proposed they use the declaration.  The declaration for
now only works as an opt out but they might be later a proposal for an opt
in.  I cannot imagine how such an opt in could be drafted but anything is
possible here.

To give you an idea, this morning I heard that potential canditates for
article 20 subject matters are: asbestos, natural resources, joint
venture, copyright, related rights, trademarks, patents, tenancies,
transportation, state property rights including privatisation and
nationalisation and others.

Delegates are trying very hard to get their "specific subect matters with
strong national interest" into the list in article 2 to avoid putting
"things" in 20 but it=B4s intense.

And it might just get worst this afternoon since we=B4re supposed to =
discuss
k) which deals with intellectual property rights and, as they say here,
"IP- except-copyright-and-related-rights".

More later.


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