[Hague-jur-commercial-law] Clickwraps out of the Hague Convention

Mon, 23 May 2005 13:39:25 -0400

Following is the text of a letter sent by AFFECT (Americans for Fair =
Electronic Commerce Transactions) on this particular aspect of the draft =
convention.  (Sorry, but the PDF version of the letter with letterhead =
will not post to the list.)  Note that AFFECT is a coalition of consumers, =
libraries, manufacturers, financial companies and information technologists=
.  Members include large for-profit businesses as well as non-profits. =20

AFFECT can be reached through Carol Ashworth, at cashworth@alawash.org, or =
through me.  Miriam

++++++++++++++++++++
May 16, 2005

Mr. Jeffrey Kovar
Assistant Legal Advisor for Private International Law
U.S. Department of State
2430 E Street, NW
Suite 203, South Building
Washington, DC 20037-2851

Dear Mr. Kovar:

Re: Draft Hague Convention on Exclusive Choice of Courts Agreements

Americans for Fair Electronic Commerce Transactions (AFFECT) is a national
coalition of consumers, retail and manufacturing businesses, financial
institutions, technology professionals and librarians committed to the =
growth of
fair and competitive U.S. markets in software and other digital products. =
Our
members include non-profit organizations such as U.S. library associations =
and
the Society of Information Management (SIM) and companies such as Boeing,
Caterpillar and Prudential Financial. We have written to you previously =
about the
draft Hague Convention and we appreciate your willingness to consider our
views.

Our members remain very concerned that the scope of the Convention =
continues
to include choice of court terms in non-negotiated agreements. The =
Convention
may be entirely appropriate and desirable for U.S. businesses and =
non-profits,
small and large, which negotiate commercial contracts every day. However, =
the
Convention is neither appropriate nor desirable where non-negotiated =
contracts
are concerned, particularly when those contracts are in the form of =
shrink-wrap or
click-on agreements.

When a company or organization buys software or other digital information*a=
nd
even when buying other types of products that come packaged with a CD-ROM
or DVD, for example*the seller, including the creator, supplier and =
distributor,
often presents terms that are contrary to what one might expect when =
buying
traditional goods and services.

The problem is it can be hard to find out what the terms are when buying =
digital
products in the mass market. Often the seller will not make the terms of =
the
"license" available until after you have opened the sealed package. At =
that
point, you cannot negotiate more favorable terms, nor do you have much, if =
any,
recourse if you reject them. This anti-customer approach is used now by =
many
digital product sellers and could soon be used in transactions for "smart" =
goods
that incorporate software into their design, such as for autos, fax =
machines and
microwave ovens.

This problem is not limited to off-the-shelf products. When you purchase =
or
"license" a digital product via the Internet, you are asked to click "I =
agree" to
terms. Those terms, if enforced, may prohibit you from criticizing the =
product,
transferring it to someone else (including a successor business) or using =
it to
create new products * or the terms may require that your business sue or =
be
sued in a distant forum in the event of a dispute. Whatever other terms =
might be
deemed later by a court to be fair or unfair, AFFECT is in the first =
instance
concerned that the draft Hague Convention will indiscriminately validate
exclusive choice of court terms regardless of whether such terms were =
actually
"agreed to" by the parties to the agreement.

The current language in Articles 5, 7 and 9 * each of which contains some
grounds for a court to decline to enforce a choice of court term or to =
enforce a
judgment based upon a choice of court term * sets an impossibly high bar. =
If
that language cannot be improved, another way to exclude non-negotiated
agreements from the scope of the Convention would be to amend Article 3(a) =
to
read as follows:

"[E]xclusive choice of court agreement" means an agreement knowingly
concluded by two or more parties, where the parties have had the opportunit=
y
to affect the terms of the agreement, that meets the requirements of =
paragraph
c)...."

We hope that you will seriously consider this proposal and would be =
pleased to
discuss it further with you.

Sincerely,

Carol B. Ashworth
Coordinator

+++++end of letter++++++

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> 05/19/05 11:48 AM >>>
Consumer group and NGOs have been asking for exclusion of non negotiated=20=

contracts and now US tech cies are asking for the same thing.  Maybe=20
things will change? At the last consultation, it looks as if only BSA=20
was in favor.

In BNA Internat law.  Michael Geist wrote:

US TECH CO'S WANT CLICKWRAPS OUT OF HAGUE CONVENTION
BNA's Electronic Commerce & Law Report reports that U.S.
ISPs and other technology companies have urged State
Department negotiators to exclude "clickwrap" agreements
from the Draft Hague Convention on Exclusive Choice of Court
Provisions in B2B Agreements. Negotiators are set to meet
next month at the Hague Conference on Private International
Law to discuss the convention. Article at
<http://pubs.bna.com/ip/BNA/eip.nsf/is/a0b0w5h0d9>
For a free trial to the source of this story, visit
http://www.bna.com/prodcuts/ip/eplr.htm=20

--=20
Manon Anne Ress
manon.ress@cptech.org,
www.cptech.org=20

Consumer Project on Technology in Washington, DC PO Box 19367,=20
Washington, DC 20036, USA Tel.:  +1.202.387.8030, fax: +1.202.234.5176

Consumer Project on Technology in Geneva, 1 Route des  Morillons, CP=20
2100, 1211 Geneva 2, Switzerland. Tel: +41 22 791 6727

Consumer Project on Technology in London, 24 Highbury Crescent, London,=20
N5 1RX, UK. Tel:+44(0)207 226 6663 ex 252. Mob:+44(0)790 386 4642. Fax:=20
+44(0)207 354 0607

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