E-Commerceand globalization of governance
James Love
Consumer Project on Technology
Washington, DC
http://www.cptech.org
Global harmonization approaches for consumer protection and
intellectual property
Globalization and Intellectual Property
• Harmonization of norms• Multilateral Forums such as WIPO, WTO TRIPS council• Regional forums, such as FTAA, APEC, ASEAN, etc.
• Government Enforcement of global norms• WTO/TRIPS• regional trade agreements
– Nafta/FTAA, APEC, US/Africa
• bilateral trade agreements– Such as agreements involving US/Jordan, Sri Lanka, Thailand,
Israel, South Africa
• Private Enforcement of global norms– ICANN
Globalization and Consumer Protection
• Global norms• Government
– OECD guidelines for consumer protection and Privacy high level principles
– UNCITRAL on electronic contracts
• NGO, such as TACD• Business, such as ISO, GBDe, ICC, various ADR, etc.
• Global enforcement?• Protection of consumers is voluntary• WTO role is essentially negative, providing sanctions against
regulations that are considered barriers to trade• New Hague convention on judgments will address private
enforcement of cross border disputes
WCPO: Do we need a World Consumer Protection
Organization?
• There is a need for much more work on specific consumer protection issues, involving many different government agencies
• Mission should be to advance the interests of consumers.
• Consumer protection should not be a secondary or minor concern.
• Multilateral approach
Hague Convention on Jurisdiction and Foreign Judgments in
Commercial and Civil Matters
What is the Convention About?
Jurisdiction of forum (court) in commercial litigation involving cross border disputes
Collection of Foreign Judgments. The Convention seeks to make it easier to enforce and collect foreign judgments.
Does not require harmonization of substantive law
What types of law are covered? Nearly all commercial law Except for limited exceptions, including, for example:
Maritime Law Divorce Bankruptcy Wills Social Security
If something is not specifically exempted, it will be covered. For example, right now intellectual property, libel, slander, employment contracts, business to consumer contracts, and nearly everything else is included.
Who are the members of the Hague Conference on Private International Law?
The current members of the Hague Conference are:
Argentina, Australia, Austria, Belgium, Bulgaria, Canada, Chile, China, Croatia, Cyprus, Czech Republic, Denmark, Egypt, Estonia, Finland, Former Yugoslav Republic of Macedonia, France, Germany, Greece, Hungary, Ireland, Israel, Italy, Japan, Republic of Korea, Latvia, Luxembourg, Malta, Mexico, Monaco, Morocco, Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Suriname, Sweden, Switzerland, Turkey, United Kingdom of Great Britain and Northern Ireland, United States of America, Uruguay, Venezuela However, the impact of the treaty will be even broader. For example, already the US government is trying to bring the Hague convention issues regarding foreign judgments into the Free Trade Area for the America's (FTAA) regional trade agreement.
Areas of Controversies
There are many areas of controversies: Intellectual PropertyEmployment contracts (Article 8)Business to consumer (Article 7)Competition PolicyLaw affecting speech
Intellectual Property Rights (IPR) Issues
Consumer groups, free software developers, librarians, and others are concerned that the convention will create:
"worst of all possible worlds" scenario where people can be sued anywhere in the world
over allegations of infringements, even when actions are legal in their home country."
IPR Issues
Patents (global reach for broad business methods and software patents) Free software (greater risks and liabilities for developers of free software) Fair use (suits filed in countries with narrow fair use exemptions) Reverse engineering (not permitted in some countries) Sui generis IPR regimes (having to abide by sui generis laws that don't exist
in home country, like EU database protection laws) Trademark (issues concerning fair use, anticompetitive practices, criticisms,
etc) Trade secret (laws different in different countries, chilling whistleblowers,
etc) Unfair competition (laws different worldwide) Government copyright (government suing under crown copyright for putting
government documents on the web i.e. UK M5 examples)
Government copyright cases
• Germany– Hitler
• UK– David Shayler– Nottinghamshire County Council
Consumer Protection issues
• Choice of forum clauses in contracts of adhesion.• Will consumer retain right to sue or be sued in home
country?
• Business community pushing for Alternative Dispute Resolution (ADR)• As mechanism for global harmonization• As safe harbor from national laws on consumer
protection and privacy
• Rules regarding status of B2C contracts, will have broad impact, including on IPR issues.
Formal Meetings on the Hague Convention
December 11-12, the Hague, on ADRDecember 13-14, Basel, country discussionsJanuary 30-31, WIPO, IPR and jurisdictionLast week in February, Ottawa II on e-commerceApril, ScotlandJune 6-20, 2001, 1st diplomatic conference, in the
Hague
For More Information
CPT web page on Hague Convention http://www.cptech.org
Discussion list hague-jur-commercial-lawhttp://lists.essential.org/mailman/listinfo
CPT contact: Manon Ress:[email protected]
1.202.387.8030