Re: Fwd: RE: dispute resolution?

[Gail James <gailo@deakin.edu.au>]

I've been following this debate on jurisdiction with interest. Most of the
databases we subscribe to in Australia are from US or Europe and the area
of jurisdiction is an issue with us. The cost to settle a dispute in the
Northern Hemisphere would be seriously high for us, therefore we always
negotiate jurisdiction to Australia and are usually successful.

I'm interested in this last comment about the Purchasing Department making
the decision about jurisdiction these lends more evidence to the fact that
the power to change licences lies with the commercial section of a company
not the legal department.

I think it an interesting idea about third party mediation but doubt this
would work if the licence had a restrictive Limited Liability which
excuses a publisher from any responsibility to resolve any issues a
library might want to pursue via an agreement.

Gail James
Information Resources Licences Manager
Learning Services
Geelong Waterfront Campus
Geelong   Victoria      3217
Telephone : +61 03 5227 8238
Fax : +61 03 5227 8000
Email : gailo@deakin.edu.au

>-----Original Message-----
>From: James J. O'Donnell [mailto:jod@georgetown.edu]
>Sent: Wednesday, August 28, 2002 1:36 PM
>To: liblicense-l@lists.yale.edu
>Subject: dispute resolution?
>
>We continue to pursue the issue of access to the L'Annee Philologique
>database.  Listmembers will recall that the publisher's insistence on
>French jurisdiction for all legal claims is a showstopper for most
>American users.
>
>I write to ask views on this possibility:  what would be the possibility
>of a contract in which both parties agreed to forego litigation in favor
>of an agreed form of dispute resolution?  In other words, both sides agree
>to a non-judicial third party mediation, with as ultimate sanction the
>agreement to end the contract if no resolution is possible through
>mediation.  Given that the size of claims under this particular license is
>unlikely to be large (and the number unlikely to exceed zero, as a matter
>of fact, but very very unlikely to get out of the single digits), such a
>procedure might be entirely satisfactory as far as resolving issues goes.
>Would it succeed in making a license signable by American (and publicly
>funded) institutions?
>
>Jim O'Donnell
>President-Elect, American Philological Association