[Hague-jur-commercial-law] WID on IP &The Hague meeting

[Manon Ress]

THURSDAY, MARCH 31, 2005 WASHINGTON INTERNET DAILY—5

International
For the first time, industry groups are split over whether a Hague 
treaty covering choice of law in businessto-business (including 
e-commerce) contracts should include non-negotiated instruments such as 
online clickthroughagreements, Consumer Project on Technology Dir. James 
Love said Wed. On Tues., the Secy. of State’s Advisory Committee on 
International Law met to try to resolve intellectual property (IP) 
issues raised by the convention -- which seeks to harmonize jurisdiction 
and enforcement of judgments in cross-border civil cases -- before
a June 14-30 diplomatic conference. Several groups said their members 
are uncomfortable with mandatory choice of forum clauses in 
non-negotiated contracts, particularly in a treaty any country can join, 
Love said. Movie and software lobbyists were “on the defensive,” he 
said, with software firms claiming it’s impossible to draft language 
distinguishing between negotiated and non-negotiated agreements. But 
other businesses disagreed, Love said, saying drafters could look to the 
distinction in the Uniform Computer Information Transactions Act or the 
N.Y. convention on arbitration. They also suggested building in language 
that looks at whether each party actually can change a contract’s terms. 
The American IP Law Assn. and the International Trademark Assn. wanted 
to make sure participants were discussing only negotiated contracts, 
said Manon Ress, CPT dir.-information technology projects: “The 
expression ‘contract between consenting adults’ to define what kind of 
contracts we were hoping we were talking about came back again and 
again.” Love said he told the group “a convention that combined both 
negotiated and non-negotiated contracts would end up being weaker for 
negotiated contracts and have less support overall.” Consumer groups 
have long pushed to exclude non-negotiated contracts. The current 
slimmed-down version of the treaty no longer deals with 
business-to-consumer contracts, but consumer groups worry consumers may 
be deemed businesses with regard to take-it-or-leave-it contracts in 
some circumstances (WID March 14 p4). The exchanges at Tues.’s meeting 
were “very valuable” said a source close to the talks, confirming the 
industry split: “There was common ground expressed on the approach to IP 
rights in the convention, even if the details were not all agreed or 
worked out.” Ress said it was “more or less agreed” that the 
negotiated-vs.-non-negotiated issue would be on the agenda of a May 9 
meeting devoted to a more general discussion of the treaty. Sadly, she 
said, it’s not on the Hague drafting committee’s agenda for a new draft. 
-- DS
-- 
Manon Anne Ress
manon.ress@cptech.org,
www.cptech.org

Consumer Project on Technology in Washington, DC PO Box 19367, 
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