|
Hague Conference on Private International Law
The Hague
Conference is an intergovernmental organisation, the purpose of which
is "to work for the progressive unification of the rules of private
international law" (Statute,
Art. 1). The principal method used to achieve this purpose consists
in the negotiation and drafting of multilateral treaties by member
states in the different fields of private international law.
Draft Hague Convention on
International Jurisdiction and Foreign Judgments in Civil and Commercial
Matters
The Hague Conference on Private International
Law established a Special Commission to develop a new multilateral
Convention on jurisdiction, recognition and enforcement of judgments
in civil and commercial matters (also known as the 'Judgments Project').
The purpose of the Convention is to provide an orderly international
framework for recognition and enforcement of civil judgments. The
Convention would apply to all civil and commercial matters but would
not extend, in particular, to revenue, customs or other adminstrative
matters. A number of preliminary
documents have been produced by the Commission, including a
recent reflection paper prepared by First Secretary Andrea Schulz
to assist
in the preparation of the Convention (see Preliminary
Document No. 19).
Three proposals
have been made with respect to the treatment of intellectual property
in the draft Convention:
- 'Alternative A' states that in proceedings
in which the relief sought is a judgment on the grant, registration,
validity, abandonment, revocation or infringement of a patent
or a mark, the courts of the Contracting State of grant or registration
shall have exclusive jurisdiction. While in proceedings in which
the relief sought is a judgment on the validity, abandonment,
or infringement of an unregistered mark [or design], the courts
of the Contracting State in which rights in the mark [or design]
arose shall have exclusive jurisdiction.
- 'Alternative B' states that in relation
to proceedings which have as their object the infringement of
patents, trademarks, designs or other similar rights, the courts
of the Contracting State referred to in the preceding paragraph
[or in the provisions of Articles [3 to 16]] have jurisdiction.
- Both alternatives state that the above shall
not apply where one of the matters arises as an incidental question
in proceedings before a court not having exclusive jurisdiction
under those paragraphs. However, the ruling in that matter shall
have no binding effect in subsequent proceedings, even if they
are between the same parties.
In terms of provisional and protective measures,
Alternative A states that a court seised and having jurisdiction
under Articles to determine the merits of the case has jurisdiction
to order provisional and protective measures and a court of a Contracting
State [may] have jurisdiction to order a provisional and protective
measure in respect of property in that State or the enforcement
of which is limited to the territory of that State, even where it
does not have jurisdiction to determine the merits of a claim. Alternative
B states that a court which is or is about to be seised of a claim
and which has jurisdiction may order provisional and protective
measures intended to preserve the subject-matter of the claim. The
two alternatives indicate that there is no consensus on the inclusion
of IP within the scope of the Convention or in respect of each of
the proposals themselves.
From 22-24 April 2002, Commission I on General Affairs and
Policy of the Nineteenth Diplomatic Session of the Hague Conference
met in The Hague in order to decide about the future direction of
the Conference's work on the Convention. The Commission confirmed
the great importance it attaches to harmonising the rules on jurisdiction
and recognition and enforcement of judgments on a worldwide basis.
It also decided that the Permanent Bureau, assisted by an informal
working group, will facilitate and conduct an informal working
process with a view to preparing a text to be submitted to a
special commission during the first half of 2003 followed
by a Diplomatic Conference to be held, if possible, at the end of
2003.
Report on the Second
Meeting of the Informal Working Group on the Judgments Project
From 6-9 January 2003, the Informal Working
Group on the Judgments Project held its second meeting (see "Report
on the Second Meeting"). The first meeting had focused
on exclusive choice of court clauses. The need was felt to define
more clearly what was to be understood, for the purposes of the
Convention, by "exclusive" and "non-exclusive"
choice of court clauses. At its first meeting, the group had tentatively
suggested to include copyright but to exclude patents, trade marks
and other registered IP rights from a possible rule on choice of
court clauses and to consult stakeholders on this. One member suggested
that all IP rights, not merely copyright, should be included in
the scope of the Convention limited to choice of court clauses.
However, no conclusion was reached and participants agreed to consult
further on the issue.
The Group held its third meeting from
25-28 March 2003 in The Hague.
Preliminary Result of
the Work of the Informal Working Group on the Judgments Project
Following three meetings, each of a duration of
three days, the Informal Working Group on the Judgments Project
produced a draft
text in March 2003 focused on choice of forum and the
recognition and enforcement of judgments in civil and commercial
matters, which issues it considers to be sufficiently advanced to
be submitted to a Special Commission for consideration. Article
1(3)(k) of the Draft Text on Choice of Court Agreements states that
the Convention shall not apply to proceedings relating to the validity
of patents, trademarks and "other intellectual property rights"
but left this to be defined.
The Group discussed other issues among those identified by Commission
I, such as defendant's forum, counterclaims, and submission to the
jurisdiction of the court. However, given the limited time available,
the Group was not able to go deeply enough into these subjects to
permit any final conclusions with respect to the possibility of
drafting convention texts.
|
