The failed Hague draft convention - an explanation of its ineffective negotiations.

• Jurisdiction: United States
• Date: 01 January 2007
• Author: Barbosa, Roberto Garza

A proposed mechanism for enforcing preliminary injunctions or judgments in copyright actions may be possible despite the failure of the proposed Hague Draft Convention. It is first important, though, to consider how and why those negotiations failed.

There were several difficulties in completing the Hague Draft Convention project. Consensus among the parties was difficult because of several differences in their respective legal systems. The difficulties mentioned here are based on those described by an author that served on the U.S. delegation at the Hague Conference. (139) The first is that the European Union had previously held the Brussels Convention, the Lugano Convention, and developed the EC Regulation. The bargaining position of the European Union has been to work and sign agreements based on rules that have worked in the past. There is also a fear of U.S. monetary damages awards like, for example, the highly publicized multi-million dollar judgments for injuries suffered due to hot coffee. (140)

Another reason is that the United States has not written rules about jurisdiction. It developed its law in this area based on U.S. Supreme Court decisions interpreting the Due Process Clause. Those principles were developed not by statutory enactment, but by interpretation establishing principles of "fundamental notions of fair play and substantial justice," "purposeful availment," "reasonableness," and others. (141) Even if those principles are codified by the American Law Institute in a Restatement, their incorporation into an international agreement that will be interpreted by courts in different countries is unlikely. (142) Those...