In a fast changing world, keeping abreast with knowledge and information is a tough task for the common man. It is tough enough when this need for upgradation of knowledge is limited to "Making Money". You can some times reconcile to the status, "I have enough. Let the new generation worry about the changing knowledge scenario". But when the lack of upgradation could cause you a loss of existing property or land you in jail in some foreign land, then upgradation of knowledge becomes critical to the survival itself.

The Hague Conference precisely has this effect on the community.

On June 20, 2001, the following 49 countries concluded the first diplomatic conference on a new treaty to set the rules for jurisdiction for nearly all commercial and civil litigation and have come up with a draft for further processing.

Argentina, Australia, Austria, Belgium, Bulgaria, Canada, Chile, China, Croatia, Cyprus, Czech Republic, Denmark, Egypt, Estonia, Finland, Former Yugoslav Republic of Macedonia, France, Germany, Greece,   Hungary, Ireland, Israel, Italy, Japan, Republic of Korea, Latvia, Luxembourg, Malta, Mexico, Monaco,  Morocco, Netherlands, Norway, Peru, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Surinam,  Sweden, Switzerland, Turkey, United Kingdom of Great Britain and Northern Ireland, United States of America, Uruguay and Venezuela. 

India is presently not in the convention and sooner or later the issue of whether India should or should not participate in the future deliberations of the convention will need to be debated.

The Background:

The Hague Conference on Private International Law is a little known organization that held its first meetings in 1893, but did not have a permanent status until 1951, and since then has adopted 34 international conventions, mostly on very narrow and often obscure topics, such as the taking of evidence abroad, the form of testamentary depositions, wills, traffic accidents, and several dealing with children.

In 1965, the Hague Conference adopted a Convention on the choice of court for civil litigation, but it only was endorsed by one country -- Israel. The current effort is a renewed effort to deal with that issue, and also the enforcement of judgments and other items, and the scope is extremely wide -- nearly all civil and commercial litigation. It is, without a doubt, the most ambitious project undertaken by Convention, and the Secretariat and the member country delegates are anxious to establish the Conference as a major league actor in the rapidly changing global political economy. 

The Implications:

1.Countries which sign the convention agree to follow a set of rules regarding jurisdiction for cross-border litigation. Nearly all civil and commercial litigation is included. 
2.So long as these jurisdiction rules are followed, every country agrees to enforce nearly all of the member country judgments and injunctive orders, subject only to a narrow exception for judgments that are "manifestly incompatible with public policy," or to specific treaty exceptions, such as the one for certain antitrust claims. 
3.A judgment in one country is enforced in all Hague convention member countries, even if the country has no connection to a particular dispute. 
4.There are no requirements to harmonize national laws on any topic, except for jurisdiction rules, and save the narrow Article 28(f) public policy exception, there are no restrictions on the types of national laws that to be enforced. 
5.All "business to business" choice of forum contracts are enforced under the convention. This is true even for non-negotiated mass-market contracts. Under the most recent drafts of the convention, many consumer transactions, such as the purchase of a work related airline ticket from a web site, the sale of software to a school or the sale of a book to a library, is defined as a business to business transaction, which means that vendors of goods or services or publishers can eliminate the right to sue or be sued in the country where a   person lives. 

For the Cyber Space where the cross border transactions are a more common than in the real space, the implications are:

The treaty gives nearly every member country jurisdiction over anything that is published on or distributed over the Internet. 

On the positive side, if Indian Police wants to prosecute a person under ITA-2000 or any other Indian law, the other countries will be bound to recognize the crime and the judgment of any court in India without further questioning.

However, simultaneously,  if naavi.org writes an article  Are We Going To Witness a Cyber Tianamen Square? it could become a violation of the Chinese law and Indian Government would be forced to take action.

Under the treaty, different national laws concerning libel or slander will give rise to judgments and injunctions, as will different national laws regarding copyright, patents, trademarks, trade secrets, unsolicited email, unfair competition, comparative advertising, parallel imports of goods, and countless other items. As a consequence, people will find that activities that are legal where they live are considered illegal in a different country and that under the treaty, the foreign country will likely have jurisdiction, and their laws will be enforceable in all Hague member countries.

The Convention will give legal and diplomatic power for countries like the USA or in Europe, that are anxious to have intellectual property infringement cases enforced globally.

One of the biggest problems with the Convention is that unlike the WTO efforts which try to work at "Harmonization of laws by Persuasion", The Hague framework begins with the notion that there will not be harmonization of substantive law, only harmonization of rules regarding jurisdiction and enforcement of laws. So it is a fundamental part of the Hague treaty that laws that are very different from each other will be enforced, across borders.

The worst laws in each country will therefore become the strongest threat to the Community in all member countries.

The treaty is based on some good thoughts, but is impractical to be implemented unless we have a common law regime globally. In this direction , the WTO efforts appear more democratic. However since WTO efforts at "Harmonization" itself is a big threat to developing countries whose policies can be manipulated by rich nations having economic power, the Hague convention would pose a much bigger threat. 

It is therefore necessary for us to keep far away from this treaty. In fact it is time that India takes a lead in forming a South Asian lobby consisting of India, Singapore, Malaysia and other countries in this region thinking independently, to harmonize Cyber Crime laws in the region. This should give better enforcement options for "Hacking" and "Virus" related offenses which are  Community threats .

In the meantime, the public and the law community need to start reading about all the laws of the current Hague member countries since they may become relevant to Indians if India ever decides to join this mad convention.

Naavi
June 24, 2001 

Related Articles : 

The Hague Convention and Its Impact on Interent.-naavi.org

http://www.cptech.org/ecom/jurisdiction/hague.html

http://www.cptech.org/ecom/jurisdiction/whatyoushouldknow.html

http://www.gnu.org/philosophy/hague.html

http://www.tacd.org/cgi-bin/db.cgi?page=view&config=admin/docs.cfg&id=94