Re: jurisdiction language

["Dave Fisher" <Dave@library.ucsd.edu>]

I'd like to refer everyone following this thread to the NESLI model site
license found on the Liblicense home page at
http://www.nesli.ac.uk/modellicence8b.html . I threw this bone out to the
listserve six or eight weeks ago but no one responded. I submitted it in
reference to the discussion ongoing at that time regarding the legal venue
discussion of the L'Annee Philologique license.  The NESLI model came
under my scrutiny at that time during negotiations with a Berlin publisher
when I noticed that they had borrowed from section 7.10 of the NESLI model
in drafting their own license.  Since we're still awaiting closure on the
Berlin license (we were told it would be ready for 2003) I'd rather not
divulge the name of the publisher, but suffice it to say we found their
terms in this regard to be acceptable.  It keeps both parties out of the
courts and encumbers neither side to the legal system of the other.  It
presents a practical rather than a legal solution to dispute resolution.

In brief the NESLI language addresses dispute resolution by an agreement
by both parties to abide by an expert opinion and an express agreement
that this expert is not performing the role of an arbitrator. The only
thing we each would find it necessary to rework is the second sentence of
7.10.1 referencing "default of agreement" and the President of the
Institute of Chartered Accountants, unless of course you happen to be in a
UK institution.

"7.10

          7.10.1 Where the parties agree that a dispute arising out of or
in connection with this Agreement would best be resolved by the decision
of an expert, they will agree upon the nature of the expert required and
together appoint a suitable expert by agreement. In default of areement
upon whom to appoint as a suitable expert, the dispute will be resolved by
the expert deemed, following an application made to him by either party,
to be suitable by the President for the time being of the Institute of
Chartered Accountants.

          7.10.2   Any person to whom a reference is made under clause
7.10.1 shall act as expert and not as an arbitrator and his decision
(which shall be given by him in writing and shall state the reasons for
his decision) shall be final and binding on the parties except in the
case of manifest error or fraud.

          7.10.3   Each party shall provide the expert with such
information and documentation as he may reasonably require for the
purposes of his decision.

          7.10.4   The costs of the expert shall be borne by the
parties in such proportions as the expert may determine to be fair and
reasonable in all the circumstances or, if no determination is made by
the expert, by the parties in equal proportions."


David L. (Dave) Fisher                                  
Electronic Resources Coordinator   
Geisel Library/Acquisitions Dept.      
University of California, San Diego   
9500 Gilman Drive 0175A
La Jolla, CA 92093-0175
dfisher@ucsd.edu
      (858) 822-1004
Fax (858) 534-1256