[ICANN-EU] Re: [IPN] Background on Hague Treaty on Jurisdiction and Foreign Judgements

[Jeff Williams <jwkckid1@ix.netcom.com>]

James and all,

  I thought this link gets more to the point:
http://lists.essential.org/pipermail/random-bits/2000-September/000362.html

  Nicely done anyway....  >;)

James Love wrote:

> To:       Richard Stallman <rms@gnu.org>
> From:     Jamie Love <love@cptech.org>
> Date:     October 1, 2000
> Re:       Proposed Hague Treaty on Jurisdiction and Foreign
>           Judgements in Civil and Commercial Matters
>
> This is a response to your request for a basic explanation of the
> Hague Treaty.  I don't consider myself an expert on the treaty,
> and am still trying to understand how it works, so these comments
> are preliminary.  For additional information, you might contact
> Jeff Kovar from the US Department of State <kovarj@ms.state.gov>
> or see: http://www.cptech.org/ecom/jurisdiction/hague.html
>
> I.   Background
>
> The formal title is the "Hague Treaty on Jurisdiction and Foreign
> Judgements in Civil and Commercial Matters."  The treaty will
> affect a lot of different things.  It was first proposed in 1992,
> I believe by the US government.  It was in the beginning
> primarily about recognition of judgements from private
> litigation.  As I understand the background, the US wanted to
> make it easier to collect judgements when a party did not have
> assets in the country where the money was owed.  At this point,
> no one was thinking about the Internet, and the treaty was
> probably not of interest to very many people.
>
> Beginning in 1995, the use of the Internet and Internet commerce
> began to expand dramatically, and some persons began to see that
> the treaty would have significant consequences for ecommerce.
> Lots of what is done on the Internet crosses borders.
>
> The main purpose of the treaty is to provide for recognition of
> foreign judgements.  When there is cross country litigation, the
> treaty addresses such issues as the jurisdiction of the court
> (where will the case be litigated) and which laws will apply.
> Different combinations are possible.  You could be sued in China,
> but your rights might be based upon a US law, or the other way
> around.  You could also be sued in the UK under UK laws, and if
> you lost the case, the judgement would be recognized in the
> country where you live.
>
> The treaty is designed to address nearly all private commercial
> litigation, so its scope is very broad.  In its present draft, it
> would involve, for example, intellectual property claims (patent,
> copyright, trademark, trade secret, unfair competition, etc),
> libel, slander, contractual disputes, fraud, private antitrust
> litigation and just about anything where a court would award
> damages in private litigation.
>
> II.  What does the Treaty Change?
>
> Individuals, organizations or firms can now be sued in foreign
> jurisdictions, but since it is very difficult to collect foreign
> judgements, people don't have to worry much, unless they have
> assets in that country.  And, before the Internet became
> important, there were also fewer cases where what people did was
> considered of legal consequence in a foreign country.
>
> Today the Internet is important, and now speech, the
> distribution of software and music, and lots of other things
> done on the Internet are considered cross border transactions.
> Thus, if the Hague treaty creates domestic liability for
> foreign judgements, it will be a big thing.
>
> This is a form of globalization, but it is different from
> approaches that are based upon the international harmonization of
> laws.  While institutions like WIPO and the WTO seek to create a
> global system with the same laws, the Hague treaty would create a
> world where things you do on the Internet could give rise to
> liability under laws in any Hague convention member, even when
> the foreign laws are far different from the laws where you live.
> This would be true, for example, for different laws (and legal
> traditions) on libel, slander, copyright, patents, trade secrets
> and many other things.
>
> III.      ADR for Business/Consumer transactions
>
> I should also note one area where there are special rules and
> controversy.  For Internet business to consumer transactions
> (B2C), the US government has blocked language in the draft treaty
> (Article 7) that would ensure that consumers could sue businesses
> in courts where the consumer lives.  Business interests (with
> lots of help from US trade officials) are pushing for a system
> where consumer protection and privacy issues would be resolved by
> business run "alternative dispute resolution" (ADR) systems, that
> would largely enforce contracts of adhesion or consider industry
> codes of practice, like the Truste program.  This is a huge
> priority for AOL, Microsoft, IBM and many ecommerce businesses,
> who seek to avoid dealing with different consumer protection and
> privacy laws in different countries.
>
> Thus, in the B2C transactions, businesses see the treaty as
> a way to reduce liability from foreign courts.
>
> IV.  How would the treaty affect the free software movement?
>
>      There are many areas where the treaty would present problems
> for the free software movement.  This is a list of  only a few
> issues.
>
>      1.   People who write free software will likely be sued in
>           foreign countries for infringement of software patents.
>           Of course, people who live in countries without
>           software patents will face liability for patents issued
>           in countries where such patents are issued.  But also,
>           there will be the increased risk of being sued for
>           really bad (overly broad, not novel) foreign patents.
>           Many Hague member countries do not have much of an
>           examination system, where it is even easier to get
>           patents approved than in the US or Europe.
>
>      2.   Likewise, there will be potential liability in cases
>           alleging infringements of copyrights, violations of
>           trade secrets, restrictive unfair competition laws,
>           foreign sui generis database protection laws, and other
>           types of intellectual property laws, including those
>           foreign laws that are far more restrictive in terms of
>           the public's rights.
>
>      3.   For example, some countries do not permit reverse
>           engineering.  A software developer living in the US who
>           does reverse engineering could face being sued in a
>           country that banned reverse engineering.  So too with
>           other types of fair use exceptions that exist in some
>           countries, but not in others.
>
>      4.   Different national laws on digital copyright and even
>           hyper-text linking could give rise to liability for web
>           pages that pointed to software considered illegal under
>           various national laws protecting digital copyrighted
>           works.  Even if the software was considered legal where
>           you lived, it might be considered illegal somewhere
>           else.
>
>      5.   Although this isn't directly related in software
>           development, the treaty would make it possible to be
>           sued in libel or slander in foreign countries, where
>           libel or slander laws would be far more restrictive
>           than the USA.
>
> V.   Where does the process stand?
>
> The Treaty has been discussed since 1992, and it was supposed to
> be finished this year.  I only learned about the treaty earlier
> this year, when US NGOs heard about it from European consumer
> groups.  The FTC and the US department of commerce provided its
> first NGO briefing on the treaty earlier last spring.  Some
> American Bar Association committees and several business groups
> have been engaged for some time.
>
>      Right now there are four important intergovernmental
> meetings scheduled for the proposed treaty.  They include:
>
> 1.   ADR and the Hague Treaty.  December 11-12 in the Hague.
>      This is a meeting co-sponsored by OECD/International Chamber
>      of Commerce and the Hague Conference.  Businesses and US
>      trade officials are pushing to have Alternative Dispute
>      Resolution (ADR) become a substitute for national
>      jurisdiction on consumer protection and privacy aspects of
>      business to consumer transactions.  Apparently only 250
>      people will be invited to attend this meeting.
>
> 2.   WIPO meeting  on Hague treaty and IPR.  January 30-31, 2001
>      in Geneva.  This is potently a very important meeting for
>      the free software movement.  I am trying to find out how to
>      participate in the meeting.
>
> 3.   Ottawa II meeting on Hague Treaty and E-Commerce.   Last
>      week of February.  This is a follow up to earlier experts
>      meetings looking at the treaty in terms of ecommerce.  In
>      the last meeting a CPT lawyer was not permitted to read our
>      statement at the meeting, but we were allowed to distribute
>      the statement to the experts who attended the meeting.  This
>      meeting may be difficult to attend.
>
> 4.   The Diplomatic Conference on the Treaty, June 2001.  In
>      theory, this is when the treaty would be adopted, or parts
>      of it adopted, depending upon progress in negotiations.
>
> In general, there is quite a bit of work yet to be done on the
> treaty, including precisely those areas of interest: ecommerce
> and intellectual property rights.  We are a big late in the
> process, but not too late to make a difference.
>
> VI   What can be done?
>
> There are several things that could be done to address concerns
> about the treaty, but I might group them into the two categories
> of (1) fix it or (2) kill it.
>
> 1.   Make it more acceptable.  Specific concerns about the treaty
> could be addressed in the negotiations.  For example, among the
> "fixes" that we might pursue:
>
> a.   Ask the US government to push for changes that would protect
>      US traditions in free speech, looking specifically as issues
>      such as recognitions of foreign judgements for libel or
>      slander, for example.
>
> b.   Ask the US government to push for changes in the treaty to
>      protect consumer IPR rights found in US laws, such as fair
>      use under patent, copyright and trademark laws.
>
> c.   Ask that intellectual property issues be excluded from the
>      treaty altogether.  This is a pretty promising strategy,
>      given the difficulty of reconciling different national laws
>      and the existence of other global fora (WIPO and WTO) for
>      harmonization.
>
> d.   Ask the US government to push for changes that would address
>      problematic "unfair competition" laws in some countries.
>      Note, for example, that in some national laws on unfair
>      competition, it is illegal to mention a competitor's
>      products, or to say anything critical about a brand.  Under
>      Germany competition laws Wal-Mart recently ran into trouble
>      for lowering prices.
>
> e.   CPT and other consumer groups oppose proposals for binding
>      arbitration consumer and privacy protections.  This is a
>      very sensitive area of the treaty.
>
> f.   Exclude all Internet ecommerce transactions from the treaty.
>      This would limit the impact of the treaty to the types of
>      transactions for which it was first intended.
>
> (2)  Kill the treaty.   This is feasible, but would require a
> fair amount of mobilization.  Right now few members of Congress
> or the public know anything about the treaty.
>
> My own inclination is to begin by seeking fixes in the treaty,
> and to see how things go.  If the negotiators are not interested
> in making changes, then option (2) becomes more important.  I
> would add that our concerns about the treaty are very deep,
> and we are troubled by many different aspects of the treaty,
> but we are also still learning, and seeking new information.
>
> VII. Final comments.
>
> We have an NGO meeting with the US government, at the Washington,
> DC offices of the American Library Association on October 5, from
> noon to 2 pm.  The US Department of Commerce and the US
> Department of State have agreed to try to answer several sets of
> questions we have submitted on the treaty.  Let me know who is
> interested in following this.  We may set a list to discuss the
> treaty.
>
> Sincerely,
>
> James Love
> Consumer Project on Technology
>
> cc:  kovarj@ms.state.gov
>
> <------Members of the Hague Convention=------->
>
> http://www.hcch.net/e/members/members.html
>
>      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
>      Poland
>      Portugal
>      Romania
>      Slovakia
>      Slovenia
>      Spain
>      Suriname
>      Sweden
>      Switzerland
>      Turkey
>      United Kingdom of Great Britain and Northern Ireland
>      United States of America
>      Uruguay
>      Venezuela
>
> --
> James Love, Consumer Project on Technology
> v. 1.202.387.8030, fax 1.202.234.5176
> love@cptech.org, http://www.cptech.org
>
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Regards,

--
Jeffrey A. Williams
Spokesman INEGroup (Over 112k members strong!)
CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
Information Network Eng. Group. INEG. INC.
E-Mail jwkckid1@ix.netcom.com
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