E-Commerce: U.S. May Face Opposition On Narrow Jurisdictional Treaty

The United States may find itself in the minority in pushing for a narrow agenda at next week's meeting to discuss an international treaty on jurisdiction in cross-border online transactions, officials said Tuesday.

Top officials working on a convention on commercial and civil judgments being negotiated at The Hague Conference on Private International Law will convene April 22-24 in the Netherlands. The officials are meeting to decide whether the project should proceed, and if so, how. The negotiation has been stuck since a three-week meeting last June ended in disagreement.

The United States favors moving forward on some less controversial provisions within the broader draft treaty, according to the lead U.S. official in the negotiation.

"We would like the other members of the Hague Conference to focus on those elements of the comprehensive draft that are achievable now and forgo those other elements until the time is right to address them," said State Department lawyer Jeffrey Kovar, head of the U.S. delegation. Kovar will attend the meeting next week.

But in communications with other Hague-member governments in the past week, it has become clear that support is building among most other participating nations to proceed with the full text, a Bush administration official said.

Australia has been particularly strong in pushing that approach, proposing a return to the original draft treaty that dates to 1999. Canada and the European Union, and possibly Japan, also have signaled support for a comprehensive treaty negotiation.

The official said the United States likely would not sign the comprehensive treaty as it is stands. But the prospect of being left out of the treaty sent ripples through some interested parties Wednesday.

"The worst outcome would be that we're not a part of it," one private-sector observer said. "If the whole world has an agreement, we're subject to it but don't have any say in its scope and implementation."

The United States would prefer to limit negotiations to basic rules on recognition and enforcement, business-to-business contracts, choice-of-forum clauses determining before online purchases the jurisdiction of disputes, and physical torts, such as product liability. A narrower draft would allow in-depth discussions on each area rather than repeating past stalemates, one source said.

More controversial issues include business-to-consumer contracts, treatment of intellectual property issues, such as patents, trademarks and copyrights, and the definition of residence. Torts on non-physical issues, such as information, also get sticky.

In a non-governmental meeting on the Hague treaty Tuesday at the American Library Association, consumer groups showed concern about standards of defamation in the treaty. Countries like China have been criticized for using such standards to control free speech.

Libraries expressed concern that their right to freely download information for research purposes might be threatened under the provisions on contracts. They are seeking an exception for such "non-negotiated" contracts.

by William New
National Journal's Technology Daily