[ga] Re: [IPN] TACD resolution on the Hague Convention

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

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


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