Discussions will begin anew next week at The Hague on an international legal treaty that could make U.S. Web sites and Internet service providers more vulnerable to lawsuits originating anywhere in the world.
The controversial draft convention to set rules for jurisdiction and the enforcement and recognition of foreign judgments has been in the works for seven years. Delegates to the Hague Conference on Private International Law will meet for formal negotiations June 6-20 for the first time since 1999, when they produced the last public draft.
The treaty as now drafted could exacerbate a trend of foreign countries claiming jurisdiction over U.S. Web sites, said Barbara Wellbery, a partner at the Washington, D.C., office of law firm Morrison and Foerster. A recent example is a French courts efforts to force Yahoo! to block French users access to racist material.
While the draft convention would allow U.S. courts to refuse to enforce such a ruling on public policy grounds, it could be enforced in other countries.
"The result could be that the Internet is reduced to the lowest common denominator where Web sites avoid any but the safest content for fear of offending someone and being hauled into court," Wellbery said during a hearing last week before a House Energy and Commerce subcommittee.
The convention would allow consumers to sue in their home courts. It would also block companies from including choice of forum clauses —which predetermine the venue for disputes — in contracts with consumers. Critics say adoption of this provision would prevent companies from encouraging the use of alternative dispute mechanisms to settle arguments with consumers.
Some Internet service providers and consumer groups worry that the convention would place meaningless limitations on the liability of ISPs for carrying copyrighted material; copyright owners could avoid them by bringing suit in countries without such limitations.
Jeffrey Kovar, the State Departments assistant legal adviser for private international law and the lead U.S. negotiator on the convention, said most foreign judgments are recognized by U.S. courts. An international treaty, he said, would help level the playing field for U.S. litigants.
Still, the U.S. has concerns about the current draft and will seek to replace it with a "simpler approach," he said.
A different approach is needed, agreed Marc Pearl, a partner at the Shaw Pittman law firm, who is coordinating the e-commerce industrys input to the U.S. delegation to the Hague talks.
"If the delegates to this convention do not use this opportunity to begin to look seriously at revising and editing these troublesome and challenging provisions, its going to be very difficult to get private-sector support and have it ratified and implemented, in the U.S. and many countries," he said.