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

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

Jefsey and all,

  First please excuse my tardiness in replying to this, Jefsey.

Jefsey Morfin wrote:

> 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).

  Most likely you received this as a result of you being subscribed to
the Icann-europe list.

>
>
> 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?

  And very good suggestion Jefsey.  I made such a suggestion two years
ago to WIPO.

>
> 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?

  Indeed it could.

>
>
> 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?

  Yes to the first question.  No the the second.

>
> - 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?

  No there shouldn't be.

>
> - should this be a new initiative or could that be a consumer
>    extension of the ICC arbitration services?

  I would think either or both would be acceptable.

>
>
> 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

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