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E-Commerce: Vote Nears On Global Treaty With E-Commerce Impact

The fate of a long-debated convention on jurisdiction over and enforcement
of foreign judgments that include cross-border e-commerce transactions
will be decided in a few weeks, when negotiating nations decide whether to
move a pared-down draft. But even the United States, a proponent of
attempting to negotiate a limited convention, has yet to decide how it
will vote.



The draft is intended to cover disputes arising over business-to-business
(B2B) contracts naming a specific court or courts of jurisdiction over
disputed transactions.



Business groups appear to have essentially embraced the current draft as a
starting point for negotiations, though most seek additional changes. But
libraries and consumer groups remain skeptical about the potential impact
on their constituents.



As the majority of the software industry's sales are B2B, and much of
those sales international, the Business Software Alliance and the Software
and Information Industry Alliance have expressed general support for an
agreement that they see as providing more predictability in jurisdiction
and enforcement of contracts.



But at a State Department-led meeting on Monday, several business and
non-business groups expressed concern.



Alan Kasper, an attorney with the American Intellectual Property Law
Association (AIPLA), said his group supports pushing the effort forward.
But he raised questions about why the proposed convention would explicitly
exclude certain agreements, such as patents, trademarks and possibly other
intellectual property rights.



Kasper also raised concern that the convention may not provide a desired
level of protection against attack in foreign courts for intellectual
property rights that are granted by one jurisdiction. Thirdly, the AIPLA
wants the draft to more strongly provide an exception for contracting
parties where a contract reflects "manifest injustice."



Verizon Communications has said it would like to see the draft changed to
more explicitly protect Internet service providers from liability for
content carried on their networks.



The Consumer Project on Technology (CPT) circulated several concerns, such
as that the convention would create an overly rigid international
framework that would be difficult to change and that could expand
incentives for firms to "forum shop" for courts favorable to their
cases.



CPT also said the definition of a consumer, essentially a person acting
for "personal, family or household purposes," is too narrow. And it raised
concern about non-negotiated contracts, such as those entered into
unknowingly when people click on Web sites or download software.



Three library associations echoed those last concerns in a Friday letter
to Jeffrey Kovar of the State Department, who is leading the process. The
American Library Association offered several alternatives that might
resolve concerns about non-negotiated contracts and inadequate "escape"
clauses to the treaty terms.



The Computer and Communications Industry Association also sent a letter
Friday citing concern about the application of a copyright law to
contracts.



If enough countries show support by the July deadline, officials at the
Hague Conference on Private International Law, which is overseeing the
process, will decide to move forward with the draft serving as a starting
point for negotiations.



By William New

 
National Journal's Technology Daily