James Love Consumer Project on Technology cptech February 22, 2002

1. The Hague Convention on Jurisdiction and Foreign Judgments and the Internet, and the cross border enforcement of sui generis IP and benefit sharing laws James Love Consumer Project on Technology http://www.cptech.org February 22, 2002

2. What is the Hague Conference on Private International Law? • The Hague Conference on Private International Law is a small intergovernmental organisation, the purpose of which is "to work for the progressive unification of the rules of private international law“ • The Permanent Bureau is the secretariat of the Hague Conference. The Secretary General is assisted currently by three lawyers (one Deputy Secretary General, one First Secretary and one Secretary), as well as by a supportive staff of 8 people occupying 6 1/2 posts.

3. What is the difference between the "Hague Conference" and the "Hague Conventions"? • The term "Hague Conference on Private International Law" refers to the name of the intergovernmental organisation, whose purpose is "to work for the progressive unification of the rules of private international law" (Article 1 of the Statute of the Hague Conference). The principal method used to achieve this goal consists in the negotiation and drafting of multilateral treaties, which are called Hague Conventions.

4. What has the Hague Convention Done? • Between 1893 and 1904 the Conference adopted seven international Conventions, six of which have been subsequently replaced by more modern instruments. From 1951 to 1996 the Conference adopted 33 international Conventions. Until 1960 the Conventions were drafted only in French; • The most widely ratified Conventions are on civil procedure, on service of process and on taking of evidence abroad, the Convention Abolishing the Requirement of Legalisation for Foreign Public Documents, the Convention on the Conflicts of Laws Relating to Testamentary Dispositions, the Conventions dealing with maintenance obligations, the Convention on the Recognition of Divorces and Legal Separations and the Conventions on the protection of minors, on the Civil Aspects of International Child Abduction, and on intercountry adoption.

5. What type of law? • Some of the Hague Conventions deal with the determination of the applicable law, some with the conflict of jurisdictions, some with the recognition and enforcement of foreign judgments and some with administrative and judicial co-operation between authorities, and some combine one or more of these aspects of private international law. • Not all Conventions concluded at The Hague are Conventions of the Hague Conference on Private International Law (e.g. the Hague Conventions of 1964 relating to a Uniform Law on the International Sale of Goods (ULIS) and relating to a Uniform Law on the Formation of Contracts for the International Sale of Goods (ULF)).

6. Members of the Hague Conference. 10 new countries joined in 2001: Argentina, Australia, Austria, Belarus, Belgium, Bosnia and Herzegovina, Brazil, Bulgaria, Canada, Chile, China, Croatia, Cyprus, Czech Republic, Denmark, Egypt, Estonia, Finland, Former Yugoslav Republic of Macedonia, France, Georgia, Germany, Greece, Hungary, Ireland, Israel, Italy, Japan, Jordan, Republic of Korea, Latvia, Lithuania, Luxembourg, Malta, Mexico, Monaco, Morocco, Netherlands, Norway, Peru, Poland, Portugal, Romania, the Russian Federation, Slovakia, Slovenia, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Turkey, United Kingdom of Great Britain and Northern Ireland, United States of America, Uruguay, Venezuela, Yugoslavia.

7. What is the proposed Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters? • Deals with jurisdiction of forum (court) in commercial litigation involving cross border disputes • The Convention makes it easier to enforce and collect foreign judgments. • Requires countries to enforce cross border “Provisional and Protective” measures, such as injunctions. • Does not require harmonization of substantive law

8. What does the Convention do? • Countries agree upon a set of rules for jurisdiction • If countries follow jurisdiction rules, there is an obligation to recognize foreign court judgments, and to enforce foreign provisional and protective measures • A judgment in one country must be enforced in all member countries, unless they invoke a public policy exception. • Greatly enhances the enforcement of civil laws

9. Areas of Controversy • Business to Consumer Transactions • Labor Contracts • Intellectual Property Rights • Speech • Antitrust • Human rights • Almost everything dealing with the Internet

10. For Intellectual Property, the Hague Convention would: • Extending the global reach of national IP regimes, • Shift the costs of IP regimes to foreign consumers, giving countries new incentives to adopt more restrictive IP laws, • Provide an obligation to enforce foreign sui generis lawson databases, biopiracy, traditional knowledge and related issues.

11. For Speech, the Convention would: • Expose anyone who publishes information on the Internet to liability for foreign speech laws. • Places burden to defend in foreign countries. • Undermines ISP common carrier laws

12. Lets take a quick look at some of the text of the Convention

13. Article 1 Substantive scope 1. The Convention applies to civil and commercial matters. It shall not extend in particular to revenue, customs or other administrative matters.

14. Article 1 Substantive scope, con’t • The Convention does not apply to – • the status and legal capacity of natural persons; • maintenance obligations; • matrimonial property regimes and other rights and obligations arising out of marriage or similar relationships; • wills and succession; • insolvency, composition or analogous proceedings; • social security; g) arbitration and proceedings related thereto; h) admiralty or maritime matters; [i) anti-trust or competition claims;] [j) nuclear liability;]

15. Article 1 Substantive scope, con’t [3. This Convention shall not apply to arbitration and proceedings related thereto, nor shall it require a Contracting State to recognise and enforce a judgment if the exercise of jurisdiction by the court of origin was contrary to an arbitration agreement.] (13) 13/ This proposal is designed to meet the desire expressed that a judgment given in breach of an arbitration agreement or contrary to an arbitration award not be recognised or enforced. No consensus exists on this proposal.

16. Article 1 Substantive scope, con’t • A dispute is not excluded from the scope of the Convention by the mere fact that a government, a governmental agency or any person acting for the State is a party thereto.  5. Nothing in this Convention affects the privileges and immunities of sovereign States or of entities of sovereign States, or of international organisations.

17. Article 4: Choice of court 1. If the parties have agreed that [a court or] [the] courts of a Contracting State shall have jurisdiction to settle any dispute which has arisen or may arise in connection with a particular legal relationship, [that court or those] [the] courts [of that Contracting State] shall have jurisdiction[, provided the court has subject matter jurisdiction] and that jurisdiction shall be exclusive unless the parties have agreed otherwise. Where an agreement having exclusive effect designates [a court or][the] courts of a non-Contracting State, courts in Contracting States shall decline jurisdiction or suspend proceedings unless the [court or] courts chosen have themselves declined jurisdiction. [Whether such an agreement is invalid for lack of consent (for example, due to fraud or duress) or incapacity shall depend on national law including its rules of private international law.]

18. Article 10 Torts [or delicts] • A plaintiff may bring an action in tort [or delict] in the courts of the State –   a) in which the act or omission that caused injury occurred, or b) in which the injury arose, unless the defendant establishes that the person claimed to be responsible could not reasonably foresee that the act or omission could result in an injury of the same nature in that State.

19. Article 10 Torts [or delicts], con’t [2. A plaintiff may bring an action in tort in the courts of the State in which the defendant has engaged in frequent or significant activity, or has directed such activity into that State, provided that the claim arises out of that activity and the overall connection of the defendant to that State makes it reasonable that the defendant be subject to suit in that State.] [3. The preceding paragraphs do not apply to situations where the defendant has taken reasonable steps to avoid acting in or directing activity into that State.] [4. A plaintiff may also bring an action in accordance with paragraph 1 when the act or omission, or the injury may occur.] [5. If an action is brought in the courts of a State only on the basis that the injury arose or may occur there, those courts shall have jurisdiction only in respect of the injury that occurred or may occur in that State, unless the injured person has his or her habitual residence in that State.] 

20. Article 12 Exclusive jurisdiction Intellectual property [Alternative A 4. In proceedings in which the relief sought is a judgment on the grant, registration, validity, abandonment, revocation or infringement of a patent or a mark, the courts of the Contracting State of grant or registration shall have exclusive jurisdiction. • In proceedings in which the relief sought is a judgment on the validity, abandonment, or infringement of an unregistered mark [or design], the courts of the Contracting State in which rights in the mark [or design] arose shall have exclusive jurisdiction.] [Alternative B 5A. In relation to proceedings which have as their object the infringement of patents, trademarks, designs or other similar rights, the courts of the Contracting State referred to in the preceding paragraph [or in the provisions of Articles [3 to 16]] have jurisdiction.]

21. Article 12 Exclusive jurisdiction, con’t • [In this Article, other registered industrial property rights [(but not copyright or neighbouring rights, even when registration or deposit is possible)] shall be treated in the same way as patents and marks] [8. For the purpose of this Article, ‘court’ shall include a Patent Office or similar agency.]

22. Article 13 Provisional and protective measures

23. Article 28 Grounds for refusal of recognition or enforcement 1. Recognition or enforcement of a judgment may be refused [only] if – • f) recognition or enforcement would be manifestly incompatible with the public policy of the State addressed.

24. For More Information • CPT web page on Hague Convention http://www.cptech.org • Discussion list hague-jur-commercial-law http://lists.essential.org/mailman/listinfo • CPT contact: Manon Ress: mress@essential.org 1.202.387.8030