Issue 80 | May 23, 2003
Draft Hague Convention on Choice of Courts Agreements Under Review
 The United States Patent and Trademark Office and the United States Copyright Office are hosting a meeting to discuss the preparation of a new text of the Hague Jurisdiction and Enforcement of Judgments Convention on May 21, 2003, from 9:00 to 11:00 a.m., at the U.S. Patent and Trademark Office ("USPTO"), 2121 Crystal Drive, Crystal Park 2, Suite 902, Arlington, Virginia 22202.

The "Hague Conference on Private International Law" is an intergovernmental organization whose purpose is "to work for the progressive unification of the rules of private international law" under Article 1 of the Statute of the Hague Conference. The principal method used to achieve this goal consists of the negotiation and drafting of multilateral treaties referred to as "Hague Conventions." During the past 9 years, the US government and other interested governments have worked together under the auspices of the Hague Conference to draft the Hague Convention on Jurisdiction and the Enforcement of Civil Judgments. It was hoped that this convention would be an essential part of the future growth of the global economy and a cornerstone of a more harmonized worldwide civil justice structure. However, at the diplomatic conference of 2001, an impasse in the negotiations for such a convention prevented it from moving forward to completion.

During 2002, interested governments decided to form an informal experts working group to draft a limited Convention with a narrow scope that would provide the most immediate benefits for international business. After several working group meetings, a new text has emerged that focuses on exclusive choice of court clauses in commercial contracts. The full text is available at ftp://ftp.hcch.net/doc/genaff_pd08e.pdf.

According to the USPTO, interested parties involved with intellectual property enforcement should review the following Articles:
1(3)(k) -- The convention shall not apply to proceedings relating to the validity of patents, trademark and other intellectual property rights (to be defined later);

1(4) -- Proceedings are not excluded from the scope of the Convention if a matter referred to in paragraph 3 arises merely as an incidental question. However, a judgment resulting from such proceedings shall have effect under this Convention only as between the parties.

4(3) -- Nothing in this Convention shall affect subject matter jurisdiction [or the internal allocation of jurisdiction among the courts in a Contracting State].

7(1) -- A judgment given by a court of a Contracting State designated in a choice of court agreement shall be recognized or enforced, as the case may be, in other Contracting States in accordance with this Chapter. Recognition or enforcement may be refused only if -
  1. the court addressed finds that the choice of court agreement was null and void;
  2. the document which instituted the proceedings or an equivalent document, including the essential elements of the claim, was not notified to the defendant in sufficient time and in such a way as to enable him to arrange for his defense;
  3. the judgment was obtained by fraud in connection with a matter of procedure;
  4. the judgment results from proceedings incompatible with fundamental principles of procedure of the State addressed;] or
  5. recognition or enforcement would be manifestly incompatible with the public policy of the State addressed.
7(2) -- In addition, recognition or enforcement of a judgment given by a court of a Contracting State designated in a choice of court agreement other than an exclusive choice of court agreement may be refused if -
  1. proceedings between the same parties and having the same subject matter are pending before a court that was seized prior to the court of origin, either in the State addressed or in another State, provided that in the latter case the court is expected to render a judgment capable of being recognized or enforced in the State addressed; or
  2. the judgment is inconsistent with a judgment rendered, either in the State addressed or in another State, provided that in the latter case the judgment is capable of being recognized or enforced in the State addressed.
The May 21 meeting provides an opportunity for interested parties of the IP community to receive a briefing on the progress of the expert working party meetings, and to discuss the new draft text to determine whether it is a basis for further work on the Convention.

To discuss this topic further, please feel free to contact the author, Bill Heinze, at Thomas, Kayden, Horstemeyer & Risley in Atlanta, Georgia USA.

The information contained in this email is provided for informational purposes only and does not represent legal advice. Neither the APLF nor the author intends to create an attorney client relationship by providing this information to you through this message.