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Subject: RE: [legalxml-econtracts] The Future We Want?


Please see inline comments.

---------- Original Message ----------------------------------
From: "Peter Meyer" <pmeyer@elkera.com.au>
Reply-To: <pmeyer@elkera.com.au>
Date:  Sat, 26 Apr 2003 23:43:18 +1000

>Hi John,
>
>I don't exclude the matters you mention but would like to begin by covering
>the most basic requirements and then use that as a platform on which to
>build more specialised requirements. What I want to see is that we are clear
>in the requirements so we can be clear about the specific technical
>solutions that will needed to satisfy them.
>

Speaking only for myself, I think this is a very practical way of proceeding and one that I thought Dan and Jason were following in their efforts to reach consensus on a requirements document.

>Do you have a scenario statement or more detailed statement of the needs you
>identify? For example, how will dispute resolution be assisted by use of XML
>in contract preparation if the parties sign a printed document or if they
>sign an electronic representation of the document, say PDF, as their record
>of the contract? Are we talking about something that is only applicable in
>very specialised types of contract or something that is of general
>application?
>
I am a little over my head in these matters and would prefer to defer to people who are content experts, such as Dr. Leff and I believe Dave Marvit. I think there have been scenarios presented by them to the group which can be found in the archives of the past month or so. I am sorry that I do not have the references handy.

I know that Dr. Leff has in the CourtFiling TC developed a schema for use in the automatated generation of court orders for routine matters which I believe is being put into practice in several courts in the United States.

My understanding is that he is looking to extend the model to include contract disputes that can be automated from data contained in the contract, which when parsed, will provide the parameters for the automated generation of court resolution on summary judgment using rules-based programming, but Dr. Leff can correct me if I have misunderstood his work.

>I can't visualise how it will work so I would appreciate your detailed
>thoughts on this.
>
Perhaps others more qualified can jump in.

>I can see the use of XML markup in contract administration by a party to the
>contract but I am unsure how it will assist contract negotiation. How do you
>envisage this working?

Again, I think there are others more qualified. From my understanding, using a "game theory" approach to negotiation, certain parameters can be supplied to and exchanged with negotiating parties, which may include either humans or computerized agents. I imagine one goal is to generate successively favorable positions for a negotiating party, select which is most likely to achieve agreement, and then exchange the data as parameters using XML, but beyond this generalized understanding, I am afraid I am not qualified to go further.

Can anyone else jump in here? Dave? Dr. Leff?

One last point: I would like printed (on paper) contracts to remain out of scope. So long as XSL-FO or something else can produce a .pdf using a transform that is reliable in terms of cross-platform compatibility, I think it is safe to assume for the forseeable future that .pdf will remain the de facto standard of choice of legal practitioners and courts and leave the matter at that.

I had a recent experience preparing a pleading in a case involving a major corporation where we had to go to .pdf to make sure that decisions in formatting could be followed between remote networks, and even between computers and printers on the same network, even though we all were using MS Word. Without .pdf, it would not have been possible to complete the assignment in any reasonable timeframe because of subtle changes MS Word introduced between machines, all of which were Windows machines. I believe the CourtFiling TC has tabled work on CourtDocument for the time being for related reasons involving print fidelity of pdf. So I would prefer to keep that issue out of the requirements document until the prevailing sentiment of the legal communities indicates a need to proceed differently.

Best regards to all.

John Messing
>
>regards
>Peter
>
>
>>
>> Hi Peter:
>>
>> I have little problem with what you say, to the extent that I
>> think I understand it.
>>
>> In addition to enabling legally-neutral contract instantiation,
>> which is how I interpret (roughtly) what you are saying, I think
>> some of us are looking at standardized terms that will facilitate
>> automation via rules based and/or neural net programming in the
>> following areas:
>>
>> 1. contract negotiation
>> 2. contract administration
>> 3. dispute resolution.
>>
>> I think these are not yet covered by your core requirements.
>>
>> >My core requirement would be that when we mark up the terms of a
>> contract,
>> >we should ensure that if the parties wish to use a plain text
>> (Unicode) XML
>> >file as evidence of their contract, they should be able to do so.
>> >Essentially this is a requirement that the XML record should be self
>> >contained as to the terms of the contract and that it does not introduce
>> >ambiguity as to those terms. So, for example, all clause numbers
>> and cross
>> >references should be explicitly present and the hierarchical and
>> grammatical
>> >structure should be evident. I would go on to propose that the core,
>> >structural markup must not signify any legal meaning, lest this interfere
>> >with the grammatical statement of the contract terms. If in practice the
>> >parties apply semantic legal markup to suit their particular processing
>> >needs for an XML document that is treated as the evidentiary record, that
>> >markup should be excluded from the interpretation of the
>> contract, just as
>> >is often the case with legislation where clause headings etc are
>> treated as
>> >not being part of the legislation for interpretation purposes.
>> Whether the
>> >standard can ensure this outcome is doubtful. Of course, if the
>> parties want
>> >the markup to be legally significant, that is up to them. I
>> think they would
>> >be heading into uncharted waters.
>> >
>> >When the TC was formed I and some others objected to the use of
>> the term "e
>> >contracts" but were out voted on that point.
>> >I am interested in using XML as a means of preparing the terms
>> of all of the
>> >4 types of contract as a facilitative process for the parties but whether
>> >XML was used along the way is no more important to the contract
>> than if it
>> >was done in RTF or any other markup. The most concise statement of my
>> >objectives for the TC would be "To develop a standard for the
>> use of XML to
>> >facilitate contract preparation". When stated in this way, I
>> don't see the
>> >use of XML for contracts as being any different to its use for many other
>> >documents prepared by lawyers and others in their day to day work.
>> >
>> >
>> >Now that may not be everyone else's expectation so this is why we need to
>> >have this discussion. What are we trying to achieve?
>> >
>>
>
>



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