Why is it so difficult to construct an international legal framework for e-commerce? The Draft Hague Convention on Jurisdiction and the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters: A Case Study

Abstract

The Hague Conference on private international law has been negotiating for some time a draft Convention on jurisdiction and the recognition and enforcement of foreign judgments in civil and commercial matters. The draft Convention, otherwise known as the Judgments Project, is intended to create common jurisdictional rules for international civil and commercial cases and to provide for the recognition and enforcement of judgments issued by foreign courts under these rules. When discussions began on this Convention, e-commerce was not a consideration as it was not yet a reality. Since then, however, the importance of e-commerce within the context of the Convention has become all too obvious. In recent months, lawyers have gone so far as to tout the Judgments Project as “the most important legal event in the history of cyberspace”. A recent New York Times article even quoted a law school professor as saying that the Convention is “likely to shape the future of international e-commerce”. Some have seised upon the Project as an opportunity to create an international legal framework for the Internet, yet recent negotiations have proved this to be a difficult, if not impossible, task. Interestingly, this is not an isolated occurrence. Other intergovernmental organisations such as the World Trade Organisation (WTO) and the World Intellectual Property Organisation (WIPO) have also had difficulty negotiating international instruments with regard to the Internet, especially relating to the harmonisation of private international law rules. This article discusses the importance of building international co-operation for the development of e-commerce and examines the Internet related problems encountered in the Judgments Project, in an attempt to shed light on why it is so difficult to negotiate such co-operation. This article takes stock of the difficult policy decisions that must be made by States in order to push forward and concludes with some thoughts on how States and intergovernmental organisations might move ahead in obtaining greater international co-operation within regard to the Internet.