WID on Hague Meeting and Contracts, Negotiated or Not

-------- Original Message --------
Subject: [Hague-jur-commercial-law] WID on IP &The Hague meeting
Date: Thu, 31 Mar 2005 10:26:19 -0500
From: Manon Ress <[email protected]>
To:
[email protected],[email protected]

THURSDAY, MARCH 31, 2005 WASHINGTON INTERNET DAILY—5

International

For the first time, industry groups are split over whether a
Hague treaty covering choice of law in businessto-business
(including e-commerce) contracts should include non-negotiated
instruments such as online clickthroughagreements, Consumer
Project on Technology Dir. James Love said Wed. On Tues., the
Secy. of State’s Advisory Committee on International Law met to
try to resolve intellectual property (IP) issues raised by the
convention -- which seeks to harmonize jurisdiction and
enforcement of judgments in cross-border civil cases -- before a
June 14-30 diplomatic conference. Several groups said their
members are uncomfortable with mandatory choice of forum clauses
in non-negotiated contracts, particularly in a treaty any country
can join, Love said. Movie and software lobbyists were “on the
defensive,” he said, with software firms claiming it’s impossible
to draft language distinguishing between negotiated and
non-negotiated agreements. But other businesses disagreed, Love
said, saying drafters could look to the distinction in the
Uniform Computer Information Transactions Act or the N.Y.
convention on arbitration. They also suggested building in
language that looks at whether each party actually can change a
contract’s terms. 

The American IP Law Assn. and the International Trademark Assn.
wanted to make sure participants were discussing only negotiated
contracts, said Manon Ress, CPT dir.-information technology
projects: “The expression ‘contract between consenting adults’ to
define what kind of contracts we were hoping we were talking
about came back again and again.” Love said he told the group “a
convention that combined both negotiated and non-negotiated
contracts would end up being weaker for negotiated contracts and
have less support overall.” Consumer groups have long pushed to
exclude non-negotiated contracts. The current slimmed-down
version of the treaty no longer deals with business-to-consumer
contracts, but consumer groups worry consumers may be deemed
businesses with regard to take-it-or-leave-it contracts in some
circumstances (WID March 14 p4). The exchanges at Tues.’s meeting
were “very valuable” said a source close to the talks, confirming
the industry split: “There was common ground expressed on the
approach to IP rights in the convention, even if the details were
not all agreed or worked out.” Ress said it was “more or less
agreed” that the negotiated-vs.-non-negotiated issue would be on
the agenda of a May 9 meeting devoted to a more general
discussion of the treaty. Sadly, she said, it’s not on the Hague
drafting committee’s agenda for a new draft. 

-- DS

-- 
Manon Anne Ress
[email protected],
www.cptech.org

Consumer Project on Technology in Washington, DC PO Box 19367, 
Washington, DC 20036, USA Tel.:  +1.202.387.8030, fax:
+1.202.234.5176

Consumer Project on Technology in Geneva, 1 Route des  Morillons,
CP 
2100, 1211 Geneva 2, Switzerland. Tel: +41 22 791 6727

Consumer Project on Technology in London, 24 Highbury Crescent,
London, 
N5 1RX, UK. Tel:+44(0)207 226 6663 ex 252. Mob:+44(0)790 386
4642. Fax: 
+44(0)207 354 0607


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