Re: [icann-eu] Re: [IPN] TACD resolution on the Hague Convention

[Jefsey Morfin <jefsey@wanadoo.fr>]

Jeff,
thank you for passing this information from Jamie Love. (I do not know
why I subscribed to the ncdnhc-discuss list but never receive anything
from them).

Would it be not sensible that cross-border e-commerce complaints
could be addressed to a common e-commerce jurisdidiction (we have
one for war crimes) with representative courts in each country,  an
UDRP++  like procedure and an international database of the cases?
As for DNs this would not remove the cases from the national jurisdictions,
but would simplify the day to day life and augment the protection of the
consumers (would there be a choice of the panelist by the defendant,
and an appeal or control procedure). This could also be related to a
payment control and insurance services.  As long as it would be private
(a system like TeleCheck for example) I suppose it could be acceptable
to all?

Questions:

- is that a good approach we would like to dig into? Or may be I am
   stupid and do not know there are a lot of initiatives already?
- is there anythng preventing private interest or an international
   non-profit association to be set-up to provide such a service with
   a label on the seller site?
- should this be a new initiative or could that be a consumer
   extension of the ICC arbitration services?

Jefsey
france@large



At 11:13 06/05/01, Jeff Williams wrote:
>James and all,
>
>   Thank you for pasing this on.  Very interesting.  I wonder if the
>ICANN
>BOD and WIPO is paying any attention as some of the points of considered
>interests would seem to be effectual upon these organizations.
>
>James Love wrote:
>
> >         This is a statement and the text of a resolution on the Hague
> > convention that was passed by TACD on Friday in Brussels.  TACD is a US
> > and EU trade dialogue involving governments and 65 consumer groups (see
> > http://www.tacd.org).  Resolutions reflect consensus positions among the
> > TACD members.  As noted in the preamble, the TACD is still working on
> > additional text to address the group's position on the non-negotiated
> > ecommerce contracts, an issue raised in both Article 4 and 10 of the
> > Convention, and on speech related concerns, an area where there are
> > different views in different countries.  Note also that the TACD did
> > reach consensus on its call to exclude intellectual property from the
> > proposed convention, and also, that the TACD has created a new group to
> > work specifically on intellectual property issues, including (but not
> > limited to) the issues of jurisdiction raised by the Hague convention.
> >
> >         The Hague Convention begins a diplomatic convention on June 6 
> in the
> > Hague.  It will be the first global treaty on Internet jurisdiction, and
> > is highly controversial among those who actually follow it, even though
> > it has never been discussed in a US newspaper story.   Contact Manon
> > Ress for additional information (mress@essential.org, wk
> > 1.202.387.8030).   Jamie
> >
> > Statement:
> >
> >         "The TACD E-Commerce working group asked the negotiators on the
> > proposed Hague Convention on Jurisdiction and Foreign Judgments in Civil
> > and Commercial Matters to ensure that consumers can seek remedies for
> > consumer harm in the countries where they live, and to protect consumers
> > from unfair non-negotiable contract terms in e-commerce.  The current
> > draft of the Hague Convention would eliminate these rights,  for
> > example, for consumers who go online to purchase such items as airplane
> > tickets and software that are used for a business purpose."
> >
> >         "The TACD resolution also called on the Hague Convention 
> negotiators to
> > exclude all intellectual property litigation from the convention,
> > because differences in national laws on intellectual property are great,
> > and cross border enforcement could undermine consumer rights and
> > choice.  For example, the TACD is concerned that the Hague Convention
> > would force European consumers to be subject to US patents on business
> > methods, even though such patents are not legal under European law."
> >
> > <----------resolution----------------------------------->
> >
> > TACD RESOLUTION ON THE PROPOSED HAGUE CONVENTION
> > ON JURISDICTION AND FOREIGN JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS
> >
> > WHEREAS:
> >
> > Access to justice is one of the cornerstones of consumer protection. The
> > principle that consumers should be able to seek justice in the courts of
> > their home jurisdictions is founded on that cornerstone and reflects the
> > need to ensure effective redress for unfair, deceptive, and abusive
> > business practices. This principle is especially important in the
> > electronic marketplace, where consumers could be at a considerable
> > disadvantage if they are subjected to the jurisdiction of distant courts
> > when disputes arise.  Depriving consumers of access to their own courts
> > in the case of cross-border disputes is effectively denying them their
> > right to redress via the public justice system.
> >
> > Businesses can limit the jurisdictions in which they transact with
> > consumers to those jurisdictions in which they are comfortable being
> > subject to litigation.
> >
> > While the emergence of alternative dispute resolution options for
> > consumers in cross-border disputes is welcome, such options vary
> > considerably, have yet to prove their effectiveness, and will not meet
> > the needs of consumers in all cases.  The existence of ADR options does
> > not diminish the need of consumers for access to judicial redress.
> >
> > As a practical matter, court actions are usually a last resort for
> > consumers. If effective ADR options for cross-border disputes are
> > established and well-publicized, consumers will choose to use them.
> > There is no need to make court redress contingent upon the prior
> > exercise of ADR options.
> >
> > It is unfair to enforce choice of forum clauses in standard form
> > contracts against consumers as these contracts are not negotiated.  In
> > such cases, the seller's choice of forum is imposed on the consumer;
> > there is no meaningful choice of forum by the consumer.
> >
> > It is important that the definition of consumer in the Hague Convention
> > is sufficiently broad to reflect the reality of consumer transactions.
> > For example, members are concerned that individuals who purchase airline
> > tickets or computer software for business purposes under non-negotiable
> > contract terms are not protected under the current draft Convention.
> > TACD intends to produce a separate resolution on this issue prior to the
> > June meeting of the Hague Conference.
> >
> > Concerns have been raised within the TACD over the potential chilling
> > effect of the Convention on speech, for example the expression of
> > dissent or criticism of corporate and government policies.  TACD is
> > reviewing this issue prior to the June meeting.
> >
> > There are important differences in national laws regarding intellectual
> > property, including such issues as "fair" or "innocent" use, limits to
> > trademark rights in the areas of criticism, parody or comparative
> > advertising, scope of patent protection, and term of copyright
> > protection.  Cross border recognition and enforcement of Internet-based
> > intellectual property judgements raises the prospect of reduced public
> > rights to fair use of such property, contrary to the public interest.
> >
> > RESOLVED THEREFORE THAT:
> >
> > The proposed Hague Convention on Jurisdiction and Foreign Judgements in
> > Civil and Commercial Matters should promote and protect the consumer
> > interest in access to justice.  Specifically:
> >
> > 1. Consumers who transact from their home jurisdictions should not be
> > denied the right to litigate disputes regarding those transactions in
> > the courts of their home jurisdictions.
> >
> > 2. Claims by businesses against consumers should always be brought in
> > the courts of the consumers' home jurisdiction.
> >
> > 3. There should be no "prior resort" conditions (e.g., prior resort to
> > ADR) for the application of jurisdiction in the case of consumer
> > contracts.
> >
> > 4.  Non-negotiable choice of forum clauses in standard form contracts
> > should never be enforced against consumers.
> >
> > 5.  Consumers should be able to have local judgements against foreign
> > businesses easily recognized and enforced in foreign jurisdictions.
> >
> > 6. Intellectual property should be excluded from the Convention.
> >
> > --
> > James Love
> > Consumer Project on Technology
> > P.O. Box 19367, Washington, DC 20036
> > http://www.cptech.org
> > love@cptech.org
> > 1.202.387.8030 fax 1.202.234.5176
> > _______________________________________________
> > Info-policy-notes mailing list
> > Info-policy-notes@lists.essential.org
> > http://lists.essential.org/mailman/listinfo/info-policy-notes
>
>Regards,
>
>--
>Jeffrey A. Williams
>Spokesman for INEGroup - (Over 118k members strong!)
>CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
>Information Network Eng. Group. INEG. INC.
>E-Mail jwkckid1@ix.netcom.com
>Contact Number:  972-447-1800 x1894 or 214-244-4827
>Address: 5 East Kirkwood Blvd. Grapevine Texas 75208