[Random-bits] Questions to USG regarding Hague Treaty

[James Love]

To:       Mary Streett <MStreett@doc.gov> 
          US Department of Commerce
          Jeff Kovar, <Kovarj@ms.state.gov>
          US Department of State
From:     Jamie Love <love@cptech.org>
          Consumer Project on Technology

Date:     Sept 29, 2000

Re:       Questions about the Hague Convention on Jurisdiction
          and Foreign Judgements in Civil and Commercial Matters


First, thanks much for your efforts to address specific questions
about the Hague treaty on jurisdiction.  I'm not a lawyer, and am
trying to ask fairly simple questions, using specific
hypotheticals to explore the consequences of the treaty.  


1.  How will the Hague Convention on Jurisdiction affect labor
unions in the US, that engage in boycotts or corporate campaigns
against union busting firms?  For example, suppose a union
engages in a campaign that urges global consumer boycotts, using
the Internet to spread the message.  Could the anti-union
employer sue a US labor union in a foreign country, get a
judgment abroad, and collect the judgment in the US, where the US
labor union has assets?

2.  This is a question about the Hague treaty and libel and
slander claims, based upon Internet communications, from web
pages to email lists.  

a.  Could a corporation sue me in England, under the more
restrictive laws in England regarding libel and slander, get a
judgment in the UK, and collect it from me here? 

b.  If I was sued for libel or slander in the UK, for something I
published on a US web site, would I be protected by the 1st
amendment in the UK?  Would I rely upon a UK judge to interpret
my first amendment protections? 

c.  Could a public official in China bring a private law suit in
China against a critic living in the US who published critical
information on the Internet, alleging damages under Chinese law,
and collect the money from the critic in the USA?  


3.  The Hague Convention currently includes, according to its web
page, 47 members (http://www.hcch.net/e/members/members.html),
including countries such as China, Romania, Bulgaria, Turkey,
Japan, Korea, or Switzerland (to name a few), that have much
different legal traditions.  Some of these countries have very
restrictive "unfair competition" laws, that make it illegal to
disparage or criticize products, even when there is no issue of
confusion.  Would a US web page that criticized a firm's products
create a liability in one of these countries, that could result
in a judgement issued by a foreign court that would be recognized
in the US?


4.  Regarding the Hague treaty and copyright and fair use on the
Internet, what national laws would apply if I download an
article, data, music or software from a European web site, to my
US based computer, and make an unauthorized use, for teaching,
reverse engineering, commentary, parody or some other use that
would be fair use in the US, but possibly not fair use in Europe. 

a.  Could I be sued in Europe for violating the European
copyright laws?  Would a judgment be collected against me in the
USA?

b.   Could US firms simply publish virtually from Europe to have
the benefits of tougher copyright protections in Europe?  


5.      This is a question that concerns the relationship between
the Hague Treaty and contracts of adhesion.  Our interests
include not only contracts between business and consumers, but
also between business and libraries, business and small business,
more generally, mass market contracts of adhesion.  

a.  Has the USG effectively blocked the current draft language in
Article 7, on the grounds that consumers should not have a right
to bring an action in the courts where they are resident?

b.  If the USG has blocked approval of Article 7, what is the USG
in favor of? 

c.  Is the USG in favor of or opposed to having jurisdiction of
court or law determined by contract between the buyer and seller. 
                                        
d.  How will this work with contracts of adhesion?  

e.  What is the relationship between the various model
contracts on ecommerce, such as UCITA, and the Hague Convention? 
Would UCITA type contracts, if recognized in the US, give US
firms the ability to sue foreign customers in US courts and
collect the money in the foreign country?

f.  If a "contract" involves a service or product provided over
the Internet, does the supplier of the service or product have a
right to sue a consumer in the country where the product or
service is located?  Is this determined by the virtual presence
on the web, or some other standard for location?  

g. What if you cannot afford to defend your self in a foreign
country.  Are you going to have to default the case?  Will the
judgment be automatically valid in the USA?

h.  What if one country has restrictions on contracts of
adhesion, but another does not?  How are these differences
resolved?


Thank you both so much for reviewing these questions.  We look
forward to your response.  


Sincerely,



James Love
Consumer Project on Technology

==================================

    Appendix, Articles 6 7 of the current draft

Article 6     Contracts

A plaintiff may bring an action in contract in the courts of a
State in which -

     a) in matters relating to the supply of goods, the goods
were supplied in whole or in part;
     b) in matters relating to the provision of services, the
services were provided in whole or in part;
     c) in matters relating both to the supply of goods and the
provision of services, performance of the principal obligation
took place in whole or in part.


Article 7     Contracts concluded by consumers

1. A plaintiff who concluded a contract for a purpose which is outside
its trade or profession, hereafter designated as the consumer, may bring
a claim in the courts of the State in which it is habitually resident,
if

     a) the conclusion of the contract on which the claim is based is
related to trade or professional activities that the defendant has
engaged in or directed to that State, in particular in soliciting
business through means of publicity, and

     b) the consumer has taken the steps necessary for the conclusion of
the contract in that State.


2. A claim against the consumer may only be brought by a person who
entered into the contract in the course of its trade or profession
before the courts of the State of the habitual residence of the
consumer.

3. The parties to a contract within the meaning of paragraph 1 may, by
an agreement which conforms with the requirements of Article 4, make a
choice of court -

     a) if such agreement is entered into after the dispute has
arisen, or
     b) to the extent only that it allows the consumer to bring
proceedings in another court.


-- 
James Love, Consumer Project on Technology
v. 1.202.387.8030, fax 1.202.234.5176
love@cptech.org, http://www.cptech.org