FC: Why the Hague Convention is a terrible idea, by Jamie Love

[Declan McCullagh <declan () well com>]

Jamie Love of the Consumer Project on Technology is perhaps the most vocal, 
and certainly the most effective, critic of the proposed Hague convention. 
It strikes me that there are some dire problems with the treaty, even 
insurmountable ones.

But there are some benefits. Jamie complains that this treaty upholds the 
freedom to contract (under a contract, "vendors of goods or services or 
publishers can eliminate the right to sue or be sued in the country where a 
person lives").

This might allow an advertising-supported free email provider to avoid 
being sued in some wacky overseas court. Jamie complains of "the 
elimination of the safeguards against unfair and abusive contracts," but 
nobody's forcing you, in this example, to sign up to get free email.

Perhaps in the final draft, the costs of the Hague convention will outweigh 
the benefits. But I'd like to see more discussion of both, and I invite 
politechnicals to respond.

Background: http://www.politechbot.com/cgi-bin/politech.cgi?name=hague

-Declan

***********

Date: Sat, 02 Jun 2001 19:21:27 -0700
From: James Love <love () cptech org>
Organization: http://www.cptech.org
To: "Farber, David" <farber () cis upenn edu>,
        "McCullagh, Declan" <declan () wired com>
Subject: Hague Convention: what you should know

                   What you should know about
The Hague Conference on Private International Law's Proposed
Convention on Jurisdiction and Foreign Judgments in Civil and
                     Commercial Matters

                     James Love Consumer
                    Project on Technology
                    http://www.cptech.org
                      <love () cptech org>

                         Version 1.0
                        June 2, 2001

I.  INTRODUCTION.

This note addresses concerns over the negotiations for a new
treaty that seeks to strengthen the global enforcement of
private judgments and injunctive relief in commercial
litigation.  While the convention would clearly have some
benefits, in terms of stricter enforcement of civil
judgments, it would also greatly undermine national
sovereignty and inflict far-reaching and profound harm on the
public in a wide range of issues.

The treaty is called the Hague Convention on Jurisdiction and
Foreign Judgments in Civil and Commercial Matters, and is
being negotiated under the little known Hague Conference on
Private International Law.  The treaty is complex and far
reaching, but is effectively unknown to the general public.

In this paper, I examine the following issues.

-   How does the Convention work?
-   What are the consequences of global enforcement of non-
harmonized laws?
-   What is the significance of the Article 4 choice of
forum clause in the Hague Convention?
-   What is the significance of mandatory enforcement of all
sui generis intellectual property laws on markets for data,
music, movies, pharmaceuticals and biotechnology?
-   Why does the Article 28f public policy exception fail to
protect the public, and how does the Convention undermine
common carrier protections for ISPs?
-   What can people do?


II. HOW DOES THE TREATY WORK?

The general framework for the convention is as follows.

1.  Countries which sign the convention agree to follow a
set of rules regarding jurisdiction for cross-border
litigation.  Nearly all civil and commercial litigation is
included.

2.  So long as these jurisdiction rules are followed, every
country agrees to enforce nearly all of the member country
judgments and injunctive orders, subject only to a narrow
exception for judgments that are  "manifestly incompatible
with public policy," or to specific treaty exceptions, such
as the one for certain antitrust claims.

3.  A judgment in one country is enforced in all Hague
convention member countries, even if the country has no
connection to a particular dispute.

4.  There are no requirements to harmonize national laws on
any topic, except for jurisdiction rules, and save the narrow
Article 28(f) public policy exception, there are no
restrictions on the types of national laws that to be
enforced.

5.  All "business to business" choice of forum contracts are
enforced under the convention.  This is true even for non-
negotiated mass-market contracts.  Under the most recent
drafts of the convention, many consumer transactions, such as
the purchase of a work related airline ticket from a web
site, the sale of software to a school or the sale of a book
to a library, is defined as a business to business
transaction, which means that vendors of goods or services or
publishers can eliminate the right to sue or be sued in the
country where a person lives, and often engage in extensive
forum shopping for the rules most favorable to the seller or
publisher.

6.  There are currently 49 members of the Hague Conference,
and it is growing.  They include: 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,
Peru, Poland,  Portugal,  Romania,  Slovakia,  Slovenia,
Spain,  Suriname,  Sweden,  Switzerland,  Turkey,  United
Kingdom of Great Britain and Northern  Ireland,  United
States of America,  Uruguay and Venezuela


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