Exercising rights in the right forum - questions of jurisdiction.

• Author: Barbosa, Roberto Garza
• Position: International Copyright Law and Litigation: A Mechanism for Improvement

Taking jurisdiction over acts occurring abroad may be controversial. The considerations to be discussed here cover European and common law approaches; while both systems have remarkable differences reflected in the difficulties in achieving an international convention on jurisdiction and judgments, several existing principles can be the basis for the proposed mechanism without relying on the Hague Draft Convention. (92) Obviously, the proposed mechanism is independent from the failed Hague Draft Convention. This is because there are several convergences in both systems that may allow the application of the mechanism in several infringement cases.

Allow me to first briefly discuss some relevant aspects of jurisdiction in the European Union and common law countries. This is not a complete survey on jurisdiction; it only covers the important aspects of litigation related to copyright infringement. A brief explanation about the difficulties presented in the negotiations of the proposed Hague Draft Convention will follow. I will then propose an alternative under which the proposed mechanism may be applied without the Hague Draft Convention.

1. Jurisdiction in European Union or Civil Law Tradition Countries

   The European Union regulations are representative of how civil law tradition countries deal with questions of jurisdiction. In 1968, the European Union developed the Brussels Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters (Brussels Convention). (93) The European Union also developed the Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (Lugano Convention) in 1988, with similar provisions expanding the Brussels Convention to non-member states belonging to the European Free Trade Agreement Area (EFTA). (94) Both Conventions, however, have been superseded by the European Union Council Regulation on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (EC Regulation). (95) The EC Regulation entered into force on March 1, 2002. (96) It does not apply between Denmark and other European Union members, but in this case the Brussels Convention still applies. (97) It is also composed of the same provisions as the Brussels Convention except for the enumeration of some of its provisions. (98)

   The general rule about jurisdiction of the EC Regulation is contained in Article 2, which establishes that "persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State." (99) As an exception, Article 5(3) establishes that a Member State may be sued in another Member State "in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur." (100) The place where the harmful effect occurred has been construed quite broadly to cover the place where the commencing act took place or the place where the damages were suffered. (101) However, a key decision has determined a limitation of jurisdiction; while the court of the place where the defendant has his or her domicile may award damages in that country and abroad, (102) courts having jurisdiction based on Article 5(3) can only award damages suffered in the forum country:

   On a proper construction of the expression place where the harmful event occurred in article 5(3) ... the victim of a libel by a newspaper article distributed in several contracting states may bring an action for damages against the publisher either before the courts of the contracting state of the place where the publisher of the defamatory publication is established, which have jurisdiction to award damages for all the harm caused by the defamation, or before the courts of each contracting state in which the publication was distributed and where the victim claims to have suffered injury to his reputation, which have jurisdiction to rule solely in respect of the harm caused in the state of the court seised. (103) Another basis for jurisdiction is established by Article 6(1) of the EC Regulation, which establishes that a court may exercise jurisdiction over a nonresident defendant if he or she is one of a number of defendants for actions closely connected and "it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings." (104) This provision is similar to those provisions contained in several Mexican codes of civil procedure, including the Nuevo Leon Code of Civil Procedure, which established that "when there are several defendants having different domiciles, jurisdiction shall be for the court of the domicile chosen by plaintiff." (105) The Mexican Supreme Court has held that such legal precepts are constitutional. (106) Similarly, this kind of legal precept would pass any constitutional test in countries belonging to the civil law tradition system. Moreover, it is important to note that, contrary to Article 6(1) of the EC Regulation, equivalent Mexican provisions have no requirements aimed at avoiding the risk of inconsistent judgments. (107) But it is also important to note that jurisdiction over a non-forum resident taken by this multi-defendant approach can be difficult to enforce in...