Saturday, April 02, 2005

Global Jurisdiction and e-Commerce Subcommittee

John Gregory reported on the Global Jurisdiction Subcommittee's meeting:

The Global Jurisdiction and e-Commerce Subcommittee met on Friday April 1st. It discussed five main topics: five related to possible programs at the annual or other meetings, and one work project.
  1. At the Winter Working Meeting, the subcommittee had developed ideas on the fate of online consumer contracts faced with foreign law. Brad Joslove of Paris had presented a Hot Topics item today as a foretaste of the program. The subcommittee maintained its sponsorship of this proposal, in conjunction with the Consumer Protection working group. Brad had developed materials that would be the basis of what would be made available at the CLE session. There was some discussion of what other countries' laws should be represented at such a session. The UK and Canada were proposed - leaving open whether adding others would be confusing or helpful, notably Latin American jurisdictions.

  2. Also at the WWM, there had been discussion of a program developed out of Roland Trope's Checkpoints in Cyberspace book, which had now been published. This aimed at international business transactions and the risks that doing business electronically either created or aggravated in such matters. A co-sponsorship with the International Law Section was probably desirable on the point.

  3. The other Hot Topic today was Roland Trope and Michael Power's presentation on directors' duties of data governance: privacy, information security, and related issues. Judging from the reception of the presentation, there was considerable interest in pursuing the topic at greater depth. Michael and Roland were publishing a book with the ABA on the topic, expected to be available by the annual meeting. This was thought not to overlap with the prior topic, since this one was more domestically focused (though international considerations were not irrelevant) and not aimed at transactions.

  4. Irwin Schwartz suggested some work on protection of copyright online, based on some of his experience in dealing with hackers and unauthorized publishers of proprietary web content. This involved a number of other subcommittee and possibly committees or even sections, but seemed likely to involve more issues than just the file-sharing that was attracting headlines. It was not clear whether the international aspects of the topic were sufficient to justify primary carriage by this subcommittee, but there was some recognition that a topic should be developed and members of this subcommittee would be invited to help out.

  5. Hal Burman promoted the idea of a "recent developments" topic for a presentation. Some international features would include the new (July 2005) UNCITRAL convention on the use of electronic communications in international contracts. Recent case law could also be mentioned - even the AOL France case that Brad had spoken to, and Google's recent (mis)adventures with French trade mark law. This topic was developed further at the general leadership meeting of the Committee. No specific responsibilities were assigned at this meeting.

Hal also brought to the meeting the prospect that the Organization of American States would adopt a project to develop harmonized rules on consumer protection in e-commerce. Hal circulated a uniform provision on such jurisdiction adopted last year by the Uniform Law Conference of Canada, and an FTC proposal on money transactions. If the OAS does adopt such a project, there would be a role for a working group of this subcommittee in analysing documents and possibly making submissions on that work.

It was also noted that Hal's international policy working group would meet with the International Coordinating Committee of the Section on Saturday. Any last minute proposals for change to the UNCITRAL e-communication Convention would be welcome at that meeting.

[After the meeting there was an expression of interest in jurisdiction questions generally and an inquiry as to the follow-up, if any, to the jurisdiction work of Michael Geist's subcommittee reported on in 2004. This would be the subject of online and offline discussion to be reported to the subcommittee through the usual electronic channels.]

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