For the first time, industry groups are split over whether a Hagu...
For the first time, industry groups are split over whether a Hague treaty covering choice of law in business- to-business (including e-commerce) contracts should include non-negotiated instruments such as online click- through agreements, Consumer Project on Technology Dir. James…
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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.