[Date Prev][Date Next][Thread Prev][Thread Next][Date Index][Thread Index]
[ICANN-EU] Re: [IPN] Background on Hague Treaty on Jurisdiction and Foreign Judgements
- To: James Love <email@example.com>
- Subject: [ICANN-EU] Re: [IPN] Background on Hague Treaty on Jurisdiction and Foreign Judgements
- From: Jeff Williams <firstname.lastname@example.org>
- Date: Mon, 02 Oct 2000 01:02:09 -0700
- CC: email@example.com, ICANN-EU <firstname.lastname@example.org>
- Comment: This message comes from the icann-europe mailing list.
- Organization: INEGroup Spokesman
- References: <Pine.LNX.email@example.com>
- Sender: firstname.lastname@example.org
James and all,
I thought this link gets more to the point:
Nicely done anyway.... >;)
James Love wrote:
> To: Richard Stallman <email@example.com>
> From: Jamie Love <firstname.lastname@example.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 <email@example.com>
> 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
> 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
> 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
> 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
> James Love
> Consumer Project on Technology
> cc: firstname.lastname@example.org
> <------Members of the Hague Convention=------->
> Czech Republic
> Former Yugoslav Republic of Macedonia
> Republic of Korea
> United Kingdom of Great Britain and Northern Ireland
> United States of America
> James Love, Consumer Project on Technology
> v. 1.202.387.8030, fax 22.214.171.12476
> email@example.com, http://www.cptech.org
> Info-policy-notes mailing list
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.
Contact Number: 972-447-1800 x1894 or 9236 fwd's to home ph#
Address: 5 East Kirkwood Blvd. Grapevine Texas 75208