Jamie Love of the Consumer Project on Technology is perhaps the most vocal, and certainly the most effective, critic of the proposed Hague convention. It strikes me that there are some dire problems with the treaty, even insurmountable ones. But there are some benefits. Jamie complains that this treaty upholds the freedom to contract (under a contract, "vendors of goods or services or publishers can eliminate the right to sue or be sued in the country where a person lives"). This might allow an advertising-supported free email provider to avoid being sued in some wacky overseas court. Jamie complains of "the elimination of the safeguards against unfair and abusive contracts," but nobody's forcing you, in this example, to sign up to get free email. Perhaps in the final draft, the costs of the Hague convention will outweigh the benefits. But I'd like to see more discussion of both, and I invite politechnicals to respond. Background: http://www.politechbot.com/cgi-bin/politech.cgi?name=hague -Declan *********** Date: Sat, 02 Jun 2001 19:21:27 -0700 From: James Love <loveat_private> Organization: http://www.cptech.org To: "Farber, David" <farberat_private>, "McCullagh, Declan" <declanat_private> Subject: Hague Convention: what you should know What you should know about The Hague Conference on Private International Law's Proposed Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters James Love Consumer Project on Technology http://www.cptech.org <loveat_private> Version 1.0 June 2, 2001 I. INTRODUCTION. This note addresses concerns over the negotiations for a new treaty that seeks to strengthen the global enforcement of private judgments and injunctive relief in commercial litigation. While the convention would clearly have some benefits, in terms of stricter enforcement of civil judgments, it would also greatly undermine national sovereignty and inflict far-reaching and profound harm on the public in a wide range of issues. The treaty is called the Hague Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters, and is being negotiated under the little known Hague Conference on Private International Law. The treaty is complex and far reaching, but is effectively unknown to the general public. In this paper, I examine the following issues. - How does the Convention work? - What are the consequences of global enforcement of non- harmonized laws? - What is the significance of the Article 4 choice of forum clause in the Hague Convention? - What is the significance of mandatory enforcement of all sui generis intellectual property laws on markets for data, music, movies, pharmaceuticals and biotechnology? - Why does the Article 28f public policy exception fail to protect the public, and how does the Convention undermine common carrier protections for ISPs? - What can people do? II. HOW DOES THE TREATY WORK? The general framework for the convention is as follows. 1. Countries which sign the convention agree to follow a set of rules regarding jurisdiction for cross-border litigation. Nearly all civil and commercial litigation is included. 2. So long as these jurisdiction rules are followed, every country agrees to enforce nearly all of the member country judgments and injunctive orders, subject only to a narrow exception for judgments that are "manifestly incompatible with public policy," or to specific treaty exceptions, such as the one for certain antitrust claims. 3. A judgment in one country is enforced in all Hague convention member countries, even if the country has no connection to a particular dispute. 4. There are no requirements to harmonize national laws on any topic, except for jurisdiction rules, and save the narrow Article 28(f) public policy exception, there are no restrictions on the types of national laws that to be enforced. 5. All "business to business" choice of forum contracts are enforced under the convention. This is true even for non- negotiated mass-market contracts. Under the most recent drafts of the convention, many consumer transactions, such as the purchase of a work related airline ticket from a web site, the sale of software to a school or the sale of a book to a library, is defined as a business to business transaction, which means that vendors of goods or services or publishers can eliminate the right to sue or be sued in the country where a person lives, and often engage in extensive forum shopping for the rules most favorable to the seller or publisher. 6. There are currently 49 members of the Hague Conference, and it is growing. They include: Argentina, Australia, Austria, Belgium, Bulgaria, Canada, Chile, China, Croatia, Cyprus, Czech Republic, Denmark, Egypt, Estonia, Finland, Former Yugoslav Republic of Macedonia, France, Germany, Greece, Hungary, Ireland, Israel, Italy, Japan, Republic of Korea, Latvia, Luxembourg, Malta, Mexico, Monaco, Morocco, Netherlands, Norway, Peru, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Suriname, Sweden, Switzerland, Turkey, United Kingdom of Great Britain and Northern Ireland, United States of America, Uruguay and Venezuela ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if you include this notice. To subscribe, visit http://www.politechbot.com/info/subscribe.html This message is archived at http://www.politechbot.com/ -------------------------------------------------------------------------
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