Hague Delegates Sign Choice of Courts - Convention With Implications for Clickwraps

Delegates from 64 countries at the Hague Conference on Private International Law signed an agreement June 30 that could have broad implications for which country's courts hear international business disputes--including those dealing with clickwrap agreements.
The convention, if and when it is adopted by member states, will enforce the jurisdiction and choice of courts to which the contracting international businesses have agreed. The 13-page document is narrower and shorter than expected, some attendees told BNA. Nonetheless, its application is broad. Despite lobbying by Internet service providers to exclude clickwraps and other non-negotiated contracts (10 ECLR 501 , 5/18/05), those efforts did not prevail. Ultimately, the software and insurance industries got what they wanted: the inclusion of clickwrap contracts in the convention.

Will Individuals Be Covered When They Click? The largest exclusion was consumers. A consumer in the convention is defined as "a natural person acting primarily for personal, family or household purposes." But some worry that this definition could leave out a whole range of people who might not consider themselves a "business" and who might be caught off guard by the convention's rules, such as a teacher who downloads a program.
Others worry that the convention's inclusion of clickwrap agreements will make it harder to contest seemingly unfair demands to litigate in a far away forum.
"If a lot of your business is done through contracting, and you're concerned about the inherent difficulty in litigating pursuant to clickwrap, this convention won't give you much comfort," said Miriam M. Nisbet, legislative counsel for the American Library Association, and a delegate to the convention. "This convention will make it more difficult for you to argue that it's not fair for you to be in a particular court."