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["Yoav" <yoav AT creativecommons.org>]

 

Dear Jonathan,

 

Thank you for your important comment!

I will put it to the Legal Advisory Board, and especially to your countryman Professor Hector Macqueen.

 

Cheers

Yo'av

 

 

Yo'av Mazeh

Project Lead, iCommons-UK

 

Research Fellow

Programme in Comparative Media Law and Policy

Centre for Socio-Legal Studies

University of Oxford

 

From: cc-uk-bounces AT lists.ibiblio.org [mailto:cc-uk-bounces AT lists.ibiblio.org] On Behalf Of Jonathan Mitchell

Sent: Saturday, February 28, 2004 4:01 PM

To: cc-uk AT lists.ibiblio.org

Subject: [Cc-uk] This isn't a UK licence!

 

Proposed clause 8g includes this:

"Šthis Licence shall be governed by English law and the parties irrevocably submit to the exclusive jurisdiction of the English Courts."

 

There are three legal systems and three jurisdictions in the UK. If I was going to tie myself to a contract providing for the law and exclusive jurisdiction of another country I'd want it at least to be somewhere warm!

 

There are three solutions:

1 sub-editions for Northern Ireland, Scotland, and England/Wales; 2 a UK edition, in which the following would be substituted in clause 8g: "Šthis Licence shall be governed by the law of the jurisdiction in which the licensor is domiciled in terms of Part V of the Civil Jurisdiction and Judgments Act 1982 and the parties irrevocably submit to the exclusive jurisdiction of that jurisdiction." (for up to date version of Part V see http://www.jonathanmitchell.info/section41.html ); or 3 no choice of law provision, leaving consequences to be governed substantially by the 1982 Act, the Rome Convention, and the Private International Law (Miscellaneous Provisions) Act 1995 (as they are by the current international draft).

 

Any solution requires different language elsewhere, e.g. 5a ii and 8h, but what that language might be would depend on the choice. My preference is for 1; I am not attracted by an exclusive jurisdiction clause such as 2 which does not state which jurisdiction is exclusive, and (standing the proposals of, and uncertainty surrounding, the Rome II proposals) 3 is an undesirable solution though still better for us than the current draft.

 

If however the project were to proceed on the current draft, it should be renamed as 'England and Wales', and Scottish/Northern Irish users pointed back to the international version.

 

I suggest a policy decision be taken on this issue before detailed drafting.

 

Jonathan

--

Jonathan Mitchell QC

 

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