HAGUE CONVENTION: Kanitz V Rogers Cable Inc — Time to rethink Article 4 of the proposed Hague Convention?
Section snippets
ARTICLE 4 OF THE PROPOSED HAGUE CONVENTION
The Kanitz v Rogers Cable Inc case is relevant to the ongoing negotiations of the proposed Hague Convention on Jurisdiction and Enforcement of Foreign Judgments in Civil and Commercial Matters as it illustrates what kind of standardised choice of forum clauses Article 4 might end up validating on a global level.4 At a meeting in The Hague (April 2002) it
SOME BACKGROUND FACTS OF THE KANITZ V ROGERS CABLE INC CASE
Rogers provides Internet access service in certain parts of Canada. The plaintiffs were all subscribers to that service, called “Rogers@Home”. However, some of them had become subscribers of Rogers@Home due to a “swap of territory” between another Internet service provider, Shaw, and Rogers, while others were “original” customers of Rogers’ services.
At the time of becoming a subscriber of Rogers’ services the “original” customer had to sign a service agreement,8
THE AMENDMENT CLAUSE
The amendment clause found in Rogers’ service agreement states that:
Amendment. We may change, modify, add or remove portions of this Agreement at any time. We will notify you of any changes to this Agreement by posting notice of such changes on the Rogers@Home web site, or sending notice via email or postal mail. Your continued use of the Service following notice of such change means that you agree to and accept the Agreement as amended. If you do not agree to any modification of this
THE ISSUE OF NOTIFICATION
The amendment clause stated that Rogers would notify the customers of changes made to the original agreement. This could, in accordance with the clause, be done by “posting notice of such changes on the Rogers@Home web site, or sending notice via email or postal mail”. As Nordheimer J choose not to discuss the reasonableness of the clause in general, nor was the reasonableness or suitability of these forms of notification discussed. In fact, Nordheimer J happily accepted that the only issue
Notification of what?
Moving on to a deeper analysis of the text in the amendment clause, we find that the exact meaning of at least one part of it is ambiguous and can be interpreted in more than one way. The clause states that Rogers will notify the customers of any changes to the agreement. This could be interpreted to mean that Rogers will notify the customers of the changes, and thus, the mere notification of the updated version of the agreement, without specifically bringing the customers attention to what has
THE ARBITRATION CLAUSE
Justice Nordheimer noted that: “if it is found that there is an arbitration agreement, it is clear that the disputes raised in this action would fall within its scope”.22 Looking at the extremely broad wording of the arbitration clause, such a conclusion is hardly surprising:
Arbitration. Any claim, dispute or controversy (whether in contract or tort, pursuant to statute or regulation, or otherwise, and whether pre_existing, present or future) arising out of or relating to: (a) this
HOW DOES THE KANITZ CASE RELATE TO ARTICLE 4?
The Kanitz case contains several elements that distinguish it from the situations Article 4 of the proposed Hague Convention sets out to regulate. Firstly, the choice of forum clause in the Kanitz case was an arbitration clause. Article 4 only regulates choice of court provisions, and as a matter of fact, the Hague Convention as such does not deal with arbitration.30 Secondly, it appears that Kanitz was a consumer and as such would fall outside
CONCLUSIONS
Having examined the Kanitz case closer it is obvious that it would be undesirable to have this sort of fundamentally unfair judgments enforced on a global level. Starting with the arbitration clause itself, and working our way backwards we can note that:
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the arbitration clause is very broad and was a result of an inappropriate use of the power imbalance between the parties. Furthermore, it arguably prevents the plaintiff from effective remedies. Based on that, the arbitration clause should be
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And four other subscribers of the defendant’s Internet access service (hereinafter referred to only as Kanitz).
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Kanitz v Rogers Cable Inc [2002] O.J. No. 665.
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And the manner in which such clauses are introduced into the agreement.