The Hague Treaty Adoption--Diverse laws, uniform enforcement
It's easy to lose track of physical location on the Internet. We all know that Web servers, mail servers, routers, and the rest of the devices that make the Internet work all occupy discrete space in the physical world. But we don't usually know, or even care, whether the information we seek is served from Kansas City, Kansas, or Bombay, India. Physical location does matter, however, even on the Internet.
If you register your next domain name with Gandi.net, you'll be doing business with a French company. Register with Joker.com and you'll be doing business with a German company. Both domain name registrars have an English-language user interface for their Web sites, so you might easily miss the terms and conditions that alert you to the fact that you're doing business with a foreign company. That's probably okay as long as everything goes well, but if you ever have a dispute with one of those companies, you're facing a problem of international proportions. Can you sue the company in your home country? If you do, will the company even show up in court? Will you have to retain a lawyer in a distant country?
What's worse is the prospect that the foreign company might sue you in a foreign country. Being subject to foreign laws has been the stuff of nightmares ever since Midnight Express scared us all silly twenty-odd years ago. No, a foreign company can't pull you from your house and throw you in a dark, dank jail thousands of miles away, but it can sue you for damages in a foreign court. Just as the sentence and terms of incarceration for drug smuggling in Midnight Express were out of proportion to our own sense of what was fair, damage awards in foreign countries can seem similarly arbitrary and unjust.
So you might be surprised to learn that the United States government, along with the governments of almost fifty other nations, is drafting an international treaty that would make it easier to enforce foreign judgments domestically. In some cases, it could be the civil law equivalent of taking you out of your home in Kansas and forcing you into a Turkish jail cell. The proposed treaty could have significant repercussions for a networked world.
Global Law Enforcement
Treaty negotiations are taking place under the auspices of the Hague Conference on Private International Law. If you haven't heard of this yet, don't worry, neither has anyone else. Unfortunately, the treaty has been developing quietly for almost a decade, under the radar of many people who would be impacted by it.
The earliest discussions about making international judgments easier to enforce began in 1992. Naturally, no one was thinking much about the treaty's effect on the Internet back then. In the early '90s, the focus was on business-to-business transactions. Because of the increasingly multinational nature of commerce, businesses wanted a greater ability to enforce their international contracts with foreign partners. Those very real business concerns drove delegates to the conference to propose an international process that would result in a treaty among nations for the cooperative enforcement of international judgments.
Ten years of consensus building and negotiation have led to a draft treaty that tries to ensure predictability in the enforcement of court judgments. For example, if a U.S. company obtains a judgment against a German business partner in a U.S. court, then under the terms of the proposed treaty, a German court would be required to honor that judgment, without requiring the U.S. company to reargue the entire case. The other side of the coin is that if you're a German company entering into a contract with a U.S. company and pledging to abide by U.S. law and litigate your disputes in the United States, you can no longer simply elect not to show up when sued in a U.S. court. Sooner or later, a German court will enforce that judgment against you.
National boundaries will no longer be a practical defense to civil liability. This all makes wonderful sense for international business-to-business transactions. But the participants in the process of the Hague convention treaty didn't think too much about the Internet.
During treaty development, it was widely believed that companies would, of course, be aware that they were doing business with a foreign corporation. Not so on the Internet. Just as on the Internet no one knows whether you're a dog, neither does anyone know whether you're American or Belgian or Indian.