The draft Convention is due for review in June this year and will be discussed this week at a meeting in Ottawa.
The countries involved in the Hague Conference on Private International Law drafting the Convention include Canada, the US, Australia and Japan as well as Europe. Negotiations for the Convention have been ongoing since 1996 but the development of e-commerce has increased interest in finalising the text. A draft document was formed in October 1999.
In Europe, jurisdiction principles are set out in the Brussels Convention of 1968 which governs the enforcement of the court decisions of one European country in another. A subsequent agreement called the Lugano Convention extended the principles to certain non-European countries in 1988, but the US was notable for its absence.
The European Union recently agreed to turn the terms of the Brussels Convention into a formal EU Regulation subject to some amendment. The Regulation was adopted on 22nd December 2000 and will enter into force throughout the EU on 1st March 2002.
E-commerce companies are concerned that foreign consumers (as opposed to businesses) could sue in the courts of their home country. The draft Hague Convention also provides that the laws of the consumer’s country would apply, as opposed to those in the country of the selling business. This is provided for in the European Regulation.
The European Commission is also considering a proposal, presently known as the Rome II Green Paper, which covers non-contractual liability. It provides that the law of a consumer’s country would apply in the absence of a contract.
The draft Hague Convention is facing many critics, mostly in the US where the US Patent and Trademark Office has already publicly expressed its opposition.