[Nettime-bold] EC Public Hearing on the Hague Convention on October 24, 2001

[t byfield <tbyfield@panix.com>]

this brewing war is all very fun, but let's not forget that life 
goes on. one immensely bland and inscrutably bureaucratic aspect
of that life-as-it-will-be is the hague conference. on occasion,
i've made noise about on the list; the only response i've gotten
was a note from pit schultz, whose remarks suggested that he had
just woken up, sort of. in any event, i guarantee that you: when
the hague conference passes you'll squeal like stuck pigs. so it
might be a good idea to familiarize yourselves, at least in pas-
sing, with its impenetrable language. how will it affect you? it
is: the 'hague conference on' JURISDICTION and FOREIGN JUDGMENTS 
in CIVIL AND COMMERCIAL MATTERS. basically that means X corp can 
sue *you* in Y country, then press--merely as a matter of proce-
dure among signatories--to have that settlement enforced by YOUR
country. so, (a) if you're considering getting mixed up in, say,
anticorporate activism, and (b) would prefer not to have to hire
a lawyer in uruguay or singapore to defend yourself against some
charges that you did something in the US or UK, then it might be
useful to pay slightly more attention to this development.

cheers,
t
-

subject: [Hague-jur-commercial-law] European Commission:  
         Public Hearing on the Hague Convention on October24, 2001
date: Fri, 14 Sep 2001 10:59:45 -0400
from: Manon Ress <mress@essential.org>
organization: Essential Information
to: haguelist <Hague-jur-commercial-law@venice.essential.org>

The European Commission has announced a public hearing on the Judgments
Convention.  The announcement has a detailed set of questions.

http://europa.eu.int/comm/justice_home/unit/civil/audition10_01/en/index.htm

 
QUESTIONNAIRE ON THE PREPARATION OF THE HEARING ON THE DRAFT CONVENTION
OF THE HAGUE CONFERENCE ON JURISDICTION AND FOREIGN JUDGMENTS IN CIVIL
AND COMMERCIAL MATTERS

NB: This questionnaire refers to the latest version which is the outcome
of the first diplomatic session in the Hague in June 2001.

1 General matters

Does the draft Convention of the Hague Conference appear to you to be
valuable for Community nationals and firms today? More generally, does
this kind of draft, which would make it possible to organise the free
movement of judgments in civil and commercial matters between the
Community Member States and certain third countries, meet a need?
Explain. 

If so, on what conditions does such a project seem to you viable and
acceptable for the Community and its Member States? What advantages
would you expect from such a Convention? What disadvantages would you
under no circumstances expect? 

Does the nature of the current (mix) draft convention appear you to
correspond to the needs that legal practitioners and economic operators
feel within the framework of their activities? Explain. 

For that purpose, what terms of reference should at least appear in the
list of grounds of jurisdiction admitted by the Convention ("white
list")? 

What do you think of the existence of a "grey area" of grounds of
jurisdiction of national law in the Convention, and how do you perceive
this characteristic in relation to the European system of the Brussels
Convention of 1968 and of Regulation 44/2001, known as the "Brussels I"
Regulation (perceived advantages and disadvantages)? 

Would a simple Convention, covering only recognition and enforcement of
judgments, without laying down rules of jurisdiction directly applicable
by the court of origin as in the current draft, strike you as worthy of
interest? 

Does the presence in the Convention of a "black list" containing
prohibited grounds of jurisdiction seem essential to you or not? If so,
what grounds do you believe should be on the list? 

Would you accept that "doing business" (Article 18-2, e) could be
abolished as a ground of jurisdiction in the current list? Explain. 
Several relatively similar provisions aim to protect the suppliers using
electronic means who take specific precautions regarding subjection to
the jurisdiction of certain courts (Article 6, alternative 2, paragraph
3; Article 7-3; Article 10-3). Do you think that these provisions are
likely to fill the avowed objective, and if not, what would you propose
instead? 

2. Substantive scope (Article 1 )

2.1 Do all the exclusions allowed by Article 1 seem to you to be
justified and clear? If not, which ones should not be found on the list
of exclusions, and conversely, are there certain fields you believe
should also be excluded from the field of the Convention? Explain.

2.2 There was no consensus or agreement on the scope of the exclusions
in square brackets in Article 1 (antitrust or competition claims,
nuclear liability, property rights in rem, validity, nullity and
dissolution of legal persons). Which of these exclusions do you think
are justified, and which not? Explain.

2.3 measures from the scope of this Convention? If so, do you consider
it desirable to include jurisdiction to order interim payments in the
list of prohibited grounds of jurisdiction? 

3. General rule of jurisdiction (Article 3)

With regard to the location of natural persons, since the last meeting,
an alternative to the traditional criterion of the defendant’s habitual
residence (Article 3-1) is proposed (Article 3-2), though there is no
consensus on it (cf. note 17). Which alternative appears the more
suitable to you? Explain. 

Does Article 3-3, relating to the linking factors for legal persons,
seem suitable to you to business practice? If not, explain. 

4 Choice of court (Article 4)

Does it seem important to you that there should be a provision in the
draft concerning the parties’ choices of one or of more courts to settle
disputes between them? Give any information you can on the frequency of
use of this type of clause in the business world. If so, does the
proposed text correspond to needs inherent in business practice? 

Do you encounter difficulties in having judgments given on the basis of
choice-of-court clauses enforced? 

Does a proposal to restrict the choice of the contracting parties to the
designation of the courts of a contracting state only seem realistic to
you (cf. note 19)? 

5. Contracts and forum of the activity (Article 6)

Of the two alternatives proposed in Article 6 - that based on the
activity (A) or that based on the place of execution (B) - which is the
more acceptable to you (see footnotes 33 and 42)? 

Can the two alternatives be combined? 

With regard to alternative A (forum based on activity), indicate whether
you have an opinion as the drafting options in square brackets
(footnotes 35, 36 and 37). 

With regard to Article 6, alternative A, paragraph 2, indicate which
alternative, if any, appears the most suitable to you. Explain. 

6. Contracts concluded by consumers

Generally speaking, does a provision of this nature, which confers
jurisdiction on the courts of the consumer’s usual residence in the
event of a dispute with a professional, seem useful to you in the draft
convention? 

If so, should such a provision be confined to contracts concluded by
natural persons acting as consumers for personal or family needs or
extended to transactions by legal persons or professionals for needs not
directly connected with their activities? 

Should this rule be confined to contractual actions or extended to
other, e.g. actions on torts and delicts ? 

Should a professional be able to bring an action on a consumer contract
against the consumer only before the courts for the consumer’s place of
residence? 

Do choice-of-court clauses usually appear in international consumer
contracts to which you are parties, in particular contracts concluded
on-line? If so, which courts tend to be designated? Are they used
regularly? 

The text resulting from the meeting of June 2001 contains 3 alternatives
A, B and C, for paragraphs 5 and 6 of Article 7. Do you have any
preference for one or the other of them, or even a combination of some
of them? 

In contrast with Regulation 44/2001 (« Brussels I »), the draft of the
Convention does not include special rules on insurance. Do you think
that it should include such rules? If yes, what should be the criteria
for attributing jurisdiction in the case of disputes in matters relating
to insurance (domicile of the insurer, of the insured, place of the
damaged property or of the harmful event…)? Should these rules cover all
types of insurance or only certain types (large risks or consumer…)?
What is your experience in this area? 

7. Rule concerning individual contracts of employment

Do the proposals in the annex II (proposals 1 et 2) seem acceptable to
you? 

Do you think that it is useful in a draft of this nature to have a
ground of jurisdiction that specifically protects workers? Explain. 
Are choice-of-court clauses commonly included in international
employment contracts? If so, which courts do they designate? Are they
applied in practice? 

8. Branches

Article 9(1), apart from the text contained in square brackets, is
comparable to Article 5-5 of the Brussels Regulation 44/2001 does it
seem acceptable to you in the context of the draft of the Hague
Conference? 

Should a provision of this nature include a court in the place "in which
the defendant has carried on regular commercial activity by other
means"? 

What do you think of the new paragraph 2 in square brackets? 
More generally, how do you think subsidiaries should be treated by the
draft Convention (cf.. also Article 18-2, k)? 

9. Torts or delicts

Is a general ground of jurisdiction for torts or delicts acceptable in
this draft? What do you think of the text proposed for paragraphs 1 (a)
and (b)? Are there fields in which the current text of Article 10 of the
draft would be likely to raise implementation difficulties? Explain. 
2 Should there be a ground of activity-based jurisdiction as regards
torts and delicts in the draft convention?

Do you think that paragraph 4 should be deleted? 

Should paragraph 5 be removed in its entirety, or only the last part of
this paragraph ("... unless the injured person has his or her usual
residence in that State")? 

10. Trusts

Article 11(3) specifies that this provision applies only to disputes
within the trust, i.e. to disputes between trustee, settlor and
beneficiaries. It means therefore that disputes between the parties to
the trust and third parties are governed by the draft’s other provisions
on jurisprudence. Should this provision, which simply takes over the
terms of the report but appears in square brackets, be maintained? 

11. Exclusive jurisdiction

Should the Convention contain a list of exclusive grounds of
jurisdiction, i.e. grounds applying regardless of the parties’ habitual
residence and allowing no prorogation of forum or exercise of lis
pendens or of "forum non conveniens"? Does the limited list of exclusive
grounds in Article 12 seem suitable and useful to you? 

2 As regards property rights in rem or tenancies of immovable property

Should the court for the place where the property is situated have
exclusive jurisdiction in the Convention for disputes covering property
rights in rem? Tenancies of immovable property? Certain tenancies? If
so, which? 
 
B

11.3 Intellectual property

Patent and trademark rights

11.3.1 - The scope of application of the Convention includes
intellectual property, subject to a safeguard under the exclusive
jurisdiction rules of Article 12. Do you consider this safeguard to be
sufficient in principle, or should the Convention also include rules
that would maintain the application of the rules on jurisdiction in
either existing or future Community instruments concerning intellectual
property? For example, should the special jurisdiction rules included in
Regulation 40/94 on the Community trademark continue to apply as they
are notwithstanding the jurisdiction rules of the Convention which could
lead to a different result? The same question arises with respect to
future instruments on the Community patent and on Community designs and
models. Article 12(3) contains two alternatives, A and B. The main
question to be solved is whether infringement actions should be within
the exclusive jurisdiction. Which of these two alternatives seems the
most suitable one to you for the Convention? Do you consider that
proceedings for infringement of intellectual property rights should or
should not benefit from exclusive jurisdiction in the same way as
proceedings for validity or revocation? Could you explain why ? Explain.

- The text of Article 12, paragraph 4 covers patents and trademarks.
Should other intellectual property rights based on registration (for
instance, designs and models) be treated the same way?

- How should unregistered intellectual property rights be treated in the
Convention (for instance, unregistered trademarks or designs)? Should
they also benefit from exclusive jurisdiction rules?

11.3.2 Should there be non-exclusive jurisdiction when a question that
is otherwise covered by paragraphs 4 and 5 of Article 12 is raised on an
incidental basis in proceedings not primarily concerning the questions
dealt with in those paragraphs?

Copyright and neighbouring rights

Paragraph 7 concerns copyright and neighbouring rights. Which of the two
alternatives in square brackets is the more acceptable to you? More
generally, how should the Convention deal with these rights? 

- Should copyright and neighbouring rights be excluded in whole or in
part from the Convention? If so, why? 

- If these judgements should be included, do you think that specific
safeguards should be provided?

- Does exclusive jurisdiction (for the courts of the country where an
act of exploitation takes place) fit for copyright and neighbouring
rights litigation?

- Do you have any other suggestions for safeguards?

If these matters are maintained within the Convention, would an
additional ground for refusal of recognition or enforcement of
judgements in copyright and neighbouring rights matters, such as would
be an appropriate mean to address possible concerns (for example in the
case where recognition and enforcement are obviously incompatible with
the rules concerning conflicts of laws of the State requested, unless
the result would have been reached by observing these rules would have
been the same as that which the required court reached in giving its
judgment 

Or, on the same hypothesis, for example should recognition and
enforcement of a judgment on copyright and neighbouring rights be
refused if the original judgment would be manifestly incompatible with
principles of intellectual property protection of the State. 

12. Provisional and protective measures

12.1 Do you think that provisional and protective measures taken on the
basis of national law should be capable of being recognised and enforced
in the other contracting States or simply be available under the
Convention?

12.2 The 1999 preliminary draft dealt with the provisional or protective
measures. Do you think that the Convention should be confined to
measures that are both provisional and protective (see footnote 94 in
the new text)?

12.3 Do you think that the Convention should define what is a
provisional and protective measure for its own purposes? What do you
think of the definitions in Article 13(4)? Do you feel they are capable
of covering all the provisional and protective measures useful to the
business world?

12.4 What do you expect from a provision on the provisional or
protective measures in a Convention of this nature? What needs would
such a provision help to meet? Explain. On the contrary, should certain
fields perhaps be excluded from a provision allowing the movement of
provisional and/or protective measures?

13. Jurisdiction based on national law

Should the grounds of jurisdiction under national law be available even
against a protective provision (Articles 7 and 8) or an exclusive
jurisdiction? (this question is related to 6-1, 7-1 and 11-1) (Cf. note
105). 

14. Prohibited grounds of jurisdiction

Do the grounds of jurisdiction that it is considered desirable to
prohibit and that are on this list appear to you to have been well
characterised? 

In the course of your professional experience or in conducting cases in
third countries, have you already been confronted with the exercise of
the one or more of these grounds of jurisdiction? Describe and explain. 
What is your opinion of the human rights exception in Article 18-3? Is
it circumscribed sufficiently or is it too broad? Explain. 

15. Lis pendens and "forum non conveniens"

Does the lis pendens mechanism appear to you to be clear enough and
capable of underlying an effective court procedure? 

What do you think of the mechanism relating to the refusal by a court to
exercise the jurisdiction on the basis of Article 22 of the draft
convention? Do the guarantees provided for in paragraph 4 for the
applicant’s benefit appear you sufficiently effective to preserve his
rights vis-à-vis a dilatory request from the defendant for the court to
decline jurisdiction? If not, what would you recommend? 

16. Recognition and enforcement

Do the recognition and enforcement rules appear to you to be
sufficiently liberal or rather likely to allow excessive free movement
of judgements? Do they seem to you to be still too restrictive to
encourage recognition and enforcement? Explain. 

Would a provision allowing legal aid to be granted for natural persons
residing in a contracting State for recognition and enforcement
proceedings in another contracting state, of the kind in Article 32,
seem useful to you? 

What is your opinion of Article 33, which would allow recognition and
enforcement in the Member States of non-compensatory damages, including
exemplary and punitive damages, and court costs and expenses, on certain
conditions? 

Do you think the Convention should allow the enforcement of authentic
instruments and approved out-of-court settlements? If so, by what
procedures? 

17. Relationship between the Hague Convention and European instruments
(Article 37, Annex I)

To what extent do you think that the Hague Convention should preserve
the operation of European instruments relating to jurisdiction and/or
the recognition and enforcement of judgments in civil and commercial
matters, and in particular Regulation No 44/2001 (Brussels 1)? 

In particular, where the defendant is domiciled in a Community Member
State but the claimant is in a non-member country, do you think that
Regulation No 44/2001 should be applied? 

18. Ratification and accession (Article 42)

18.1 Do you think that the Convention should apply only between the
Community, the Member States and the other contracting States who have
expressly chosen to be bound to each other (bilateralisation of entry
into force) or that ratification could be open to all the Hague
Conference Member States at the diplomatic conference?

We would be very glad to receive your written answers (please feel free
to answer only to the questions that interest you) before the hearing
(by e-mail: JAI-coop-jud-civil@cec.eu.int or by fax: 32/2/299.64.57).

The hearing will be devoted to an open discussion on the most important
questions. 
 
[

-- 
Manon Anne Ress
mress@essential.org, voice: 1.202.387.8030
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