Re: Annee Phil. followup...International Law?

[Diana Kichuk <Diana.Kichuk@usask.ca>]

James J. O'Donnell,

I would like to point out another possible option. FAOSTAT has an
interesting clause in its agreement: Governing Law; Disputes. The clause
states that the agreement will be govened by general principles of law,
"to the exclusion of any single national system of law". Any disputes,
controversy or claim will be settled by "mutual agreement." If the parties
cannot reach an agreement a request will be made for binding arbitration
"in accordance with the Arbitration Rules of the United Nations Commission
on International Trade Law".

Perhaps some model license creators have considered International Law as a
source for arbitration of jurisdiction disputes.

While I have attempted to incorporate provincial jurisdiction is new
licenses (with varying success), I am not at all certain what this would
mean if a real dispute arose. Would my change have any impact? Would it
stand up in a court of law? Would I be better off if a single
international authority (possibly with national jurisdictions or offices)
could be responsible for arbitrating just such disputes or controversies?

Diana Kichuk
Electronic Resources Librarian
University of Saskatchewan Library
CANADA
(306) 966-5926
(306) 966-5932 (fax)
Diana.Kichuk@usask.ca


----- Original Message -----
From: "James J. O'Donnell" <jod@georgetown.edu>
To: <liblicense-l@lists.yale.edu>
Sent: Thursday, August 01, 2002 9:42 AM
Subject: Annee Phil. followup.

> Thank you all, first of all, who wrote with very helpful messages when I
> asked a couple of weeks ago for concrete cases of institutions and classes
> being disenfranchised from L'Annee Philologique by the publisher's
> insistence on French legal jurisdiction.  Let me ask that if anyone has
> not written to me (jod@georgetown.edu), I'd still be glad to hear from
> you:  that is, if you represent or know of substantial groups of users who
> would be unable to get access to L'Annee Phil. if the jurisdiction clause
> is insisted upon.
>
> There have been a variety of ideas presented by some of my correspondents
> in this process for getting around the impasse.  I list some without
> prejudice and would be happy to hear comments (especially comments on any
> that are still showstoppers):
>
> 1.  Sign it and cross your fingers.  (I think that works only if you have
>     some legal possibility of signing it, not the case for most state
>     universities.)
> 2.  Remove the clause entirely and fight it out *only* if a case arises
>     (the chances of which are fiercely unlikely).
> 3.  Write it so that in case of legal action, the jurisdiction is that of
>     the defendant (this to discourage excessive litigiousness).
> 4.  Persuade the publisher to outsource delivery to one of the big
>     aggregators of e-databases that already has a more robust business and
>     technical system in place and that is able to be more flexible on the
>     jurisdiction matter.
>
> I do not know at this point what tack the American Philological
> Association will take in approaching the publisher, and we have some back
> channels through which to have arms' length conversation beforehand in the
> hope of getting a good resolution this fall.
>
> Jim O'Donnell
> Georgetown University