CONFLITTI DI GIURISDIZIONE E BILANCIAMENTO DEI DIRITTI NEI CASI DI DIFFAMAZIONE INTERNAZIONALE A MEZZO INTERNET

This paper examines, from the perspective of EU law, the issue of conflicts of jurisdiction in internet defamation cases. Due to the ubiquitous nature of internet, damages to reputation may, in principle, occur in every State where the defamatory content is accessible. Given the absence of a uniform applicable law, there is the risk of forum shopping (known as libel tourism).This has a chilling effect on the authors’ freedom of speech. They may prefer to limit the circulation of a book (or article) rather than being exposed to the risk of a multiplicity of claims in several States. It is therefore necessary to identify a rule for assuming jurisdiction that operates a balance between the authors’ freedom of speech and the victims’ right to reputation. Starting from article 7 no. 2 and recital 16 of EU Regulation No. 1215/2012, this article, first of all, analyses the rules governing jurisdiction in internet defamation cases under EU law. Recital 16 seems to authorize judges to assume jurisdiction on the basis of a concrete evaluation of the case at hand without selecting any general criteria. In order to identify the parameters on which such a concrete evaluation should be based, the article analyses the jurisdictional rules that have been used in English law and US law in internet defamation cases. The best solution could be to attribute jurisdiction only to the State or States where the author has expressly targeted his work

Re-imagining the Principle of National Treatment: Addressing Private International Law Issues in Copyright Infringement in the Internet Era

This dissertation examines the principle of National Treatment enshrined in international copyright treaties to address private international law issues in copyright infringement occurring over the Internet. The thesis provides a brief overview of private international law and analyzed the principle of National Treatment as a private international law rule determining jurisdiction and applicable law. The primary case studies in the thesis include an analysis of the rules adopted in copyright disputes by courts in England, France, the United States and Canada in the pre- and post-Internet contexts, as well as a discussion of the European Union as an exception to these rules. The thesis concludes with the finding that the principle of National Treatment ensures that no conflict occurs in terms of either jurisdiction or applicable law, and courts need not develop private international law rules specifically to combat copyright infringement occurring over the Internet

A Brave New Borderless World: Standardization Would End Decades of Inconsistency in Determining Proper Personal Jurisdiction in Cyberspace Cases

While various courts and numerous legal professionals have addressed the issue of inconsistent application of personal jurisdiction in cyberspace cases, the Supreme Court has yet to discuss the impact that technology might have on the analysis of personal jurisdiction; thus, many details remain unresolved. This Note examines the varying jurisdictional splits between the lower district courts, the courts of appeals, and the federal circuit court of appeals in determining the proper approach to take when dealing with Internet jurisdiction. After an examination of several key cases, this Note will explain why the Supreme Court, or the Legislature, should adopt an expanded version of the Ninth Circuit’s test in Cybersell, Inc. v. Cybersell, Inc., but with one categorical limitation, in order to standardize the test for a state’s exercise of personal jurisdiction over nonresident Internet sites. This solution merges two lines of thought and amounts to the creation of a single standardized and clear objective rule that requires “something more”—interactivity and commercialization—for non-tortious cases and the inclusion of an additional limiting factor for tortious cases in controversy. This solution fully comprehends the needs of the injured party to be made whole and couples it with the need for “something more” in order to satisfy a finding of proper personal jurisdiction over a nonresident defendant in cyberspace. Part I of this Note summarizes the traditional notions of general and specific personal jurisdiction and their applications to the physical and tangible. Part II discusses case law from several different United States district and appellate courts, analyzing the key facts on which each holding turns regarding the application of traditional jurisdiction. Part III examines the Ninth Circuit’s attempt to further clarify proper cyberspace jurisdiction in Cybersell, Inc. v. Cybersell, Inc. Part IV describes a representative sample of the different approaches and solutions legal scholars have posited to potentially solve the issue of how to properly determine cyberspace jurisdiction. Part V sets forth a workable, useful solution. Finally, the conclusion projects how the new approach will effectively adapt to future advances in technology and the positive, consistent, and stable effects a single, clear test would have on cyberspace and the Internet

A Brave New Borderless World: Standardization Would End Decades of Inconsistency in Determining Proper Personal Jurisdiction in Cyberspace Cases

While various courts and numerous legal professionals have addressed the issue of inconsistent application of personal jurisdiction in cyberspace cases, the Supreme Court has yet to discuss the impact that technology might have on the analysis of personal jurisdiction; thus, many details remain unresolved. This Note examines the varying jurisdictional splits between the lower district courts, the courts of appeals, and the federal circuit court of appeals in determining the proper approach to take when dealing with Internet jurisdiction. After an examination of several key cases, this Note will explain why the Supreme Court, or the Legislature, should adopt an expanded version of the Ninth Circuit’s test in Cybersell, Inc. v. Cybersell, Inc., but with one categorical limitation, in order to standardize the test for a state’s exercise of personal jurisdiction over nonresident Internet sites. This solution merges two lines of thought and amounts to the creation of a single standardized and clear objective rule that requires “something more”—interactivity and commercialization—for non-tortious cases and the inclusion of an additional limiting factor for tortious cases in controversy. This solution fully comprehends the needs of the injured party to be made whole and couples it with the need for “something more” in order to satisfy a finding of proper personal jurisdiction over a nonresident defendant in cyberspace. Part I of this Note summarizes the traditional notions of general and specific personal jurisdiction and their applications to the physical and tangible. Part II discusses case law from several different United States district and appellate courts, analyzing the key facts on which each holding turns regarding the application of traditional jurisdiction. Part III examines the Ninth Circuit’s attempt to further clarify proper cyberspace jurisdiction in Cybersell, Inc. v. Cybersell, Inc. Part IV describes a representative sample of the different approaches and solutions legal scholars have posited to potentially solve the issue of how to properly determine cyberspace jurisdiction. Part V sets forth a workable, useful solution. Finally, the conclusion projects how the new approach will effectively adapt to future advances in technology and the positive, consistent, and stable effects a single, clear test would have on cyberspace and the Internet

Conflict of Laws (2003)

States\u27 and nations\u27 laws collide when foreign factors appear in a lawsuit. Nonresident litigants, incidents outside the forum, parallel lawsuits, and judgments from other jurisdictions can create problems with personal jurisdiction, choice of law, and the recognition of foreign judgments. This article reviews Texas conflicts cases from Texas state and federal courts during the Survey period from October 1, 2001, through November 1, 2002. The article excludes cases involving federal-state conflicts, intrastate issues such as subject matter jurisdiction and venue, and conflicts in time, such as the applicability of prior or subsequent law within a state. State and federal cases are discussed together because conflicts of laws is mostly a state law topic, except for a few constitutional limits, resulting in the same rules applying to most issues in state and federal courts. The discussion is organized according to conflict of laws categories. For jurisdiction over nonresidents, the categories are the grounds for amenability-consent, forum contacts, and grounds for declining jurisdiction. The choice of law categories reflect the hierarchy of choice of law rules, first statutory, then party choice of law, then the Restatement (Second)\u27s most-significant-relationship test, followed by miscellaneous issues such as constitutional limits, proof of foreign law, and limitations. The foreign judgments categories are enforcement (according to specific uniform acts) and preclusion (interstate and international). During the Survey period, forum contests included a variety of jurisdictional assertions over nonresidents in contract, tort and other settings. Jurisdictional theories included a service-of-suit clause construed as consent to amenability, alter-ego and the single-enterprise doctrine, and cases exploring the boundaries of general jurisdiction (such as jurisdiction based on unrelated banking activity). Jurisdiction was lacking over a Belgian employment law claim, and a nationwide federal long-arm failed because of a predicate venue provision. Courts reached opposite results in two internet cases, discussed retained jurisdiction under the new child custody act, and issued an unauthorized anti-suit injunction against a Mississippi lawsuit. Choice of law cases affirmed the parties\u27 right to choose their governing law, declined to adopt the Restatement\u27s statute of limitations rule, upheld arbitration agreements but strictly construed them to exclude children not subject to the contract, applied Texas insurance law--the insurable interest doctrine--to several companies\u27 purchase of life insurance policies on Texas employees (and considered the constitutionality given the case\u27s contacts with eight states), reiterated the requirements for proof of foreign law, and applied Texas\u27s new borrowing statute to an asbestosis claim arising in Alaska. Foreign judgments cases discussed the difference between jurisdictional facts and the merits in a jurisdictional challenge to a New Jersey judgment, upheld the validity of English due process, and found the Uniform Foreign Country Money Judgment Recognition Act persuasive in a preclusion case rejecting a non-monetary Mexican judgment

Conflict of Laws (2003)

States\u27 and nations\u27 laws collide when foreign factors appear in a lawsuit. Nonresident litigants, incidents outside the forum, parallel lawsuits, and judgments from other jurisdictions can create problems with personal jurisdiction, choice of law, and the recognition of foreign judgments. This article reviews Texas conflicts cases from Texas state and federal courts during the Survey period from October 1, 2001, through November 1, 2002. The article excludes cases involving federal-state conflicts, intrastate issues such as subject matter jurisdiction and venue, and conflicts in time, such as the applicability of prior or subsequent law within a state. State and federal cases are discussed together because conflicts of laws is mostly a state law topic, except for a few constitutional limits, resulting in the same rules applying to most issues in state and federal courts. The discussion is organized according to conflict of laws categories. For jurisdiction over nonresidents, the categories are the grounds for amenability-consent, forum contacts, and grounds for declining jurisdiction. The choice of law categories reflect the hierarchy of choice of law rules, first statutory, then party choice of law, then the Restatement (Second)\u27s most-significant-relationship test, followed by miscellaneous issues such as constitutional limits, proof of foreign law, and limitations. The foreign judgments categories are enforcement (according to specific uniform acts) and preclusion (interstate and international). During the Survey period, forum contests included a variety of jurisdictional assertions over nonresidents in contract, tort and other settings. Jurisdictional theories included a service-of-suit clause construed as consent to amenability, alter-ego and the single-enterprise doctrine, and cases exploring the boundaries of general jurisdiction (such as jurisdiction based on unrelated banking activity). Jurisdiction was lacking over a Belgian employment law claim, and a nationwide federal long-arm failed because of a predicate venue provision. Courts reached opposite results in two internet cases, discussed retained jurisdiction under the new child custody act, and issued an unauthorized anti-suit injunction against a Mississippi lawsuit. Choice of law cases affirmed the parties\u27 right to choose their governing law, declined to adopt the Restatement\u27s statute of limitations rule, upheld arbitration agreements but strictly construed them to exclude children not subject to the contract, applied Texas insurance law--the insurable interest doctrine--to several companies\u27 purchase of life insurance policies on Texas employees (and considered the constitutionality given the case\u27s contacts with eight states), reiterated the requirements for proof of foreign law, and applied Texas\u27s new borrowing statute to an asbestosis claim arising in Alaska. Foreign judgments cases discussed the difference between jurisdictional facts and the merits in a jurisdictional challenge to a New Jersey judgment, upheld the validity of English due process, and found the Uniform Foreign Country Money Judgment Recognition Act persuasive in a preclusion case rejecting a non-monetary Mexican judgment

E-Lawyering, the ABA\u27s Current Choice of Ethics Law Rule & the Dormant Commerce Clause: Why the Dormant Commerce Clause Invalidates Model Rule 8.5(b)(2) When Applied to Internet Representations of Clients

The Internet is becoming the primary manner in which some attorneys serve clients. States have already taken differing views on whether it is acceptable for an attorney to engage in electronic representations of clients. Thus, determining what jurisdiction’s law applies to such attorney conduct can be very important in deciding whether this activity constitutes the unauthorized practice of law, and, if not, the exact duties of an attorney in such representations. This article argues that the current version of Model Rule of Professional Responsibility 8.5(b), which governs choice of ethics law, can be interpreted to apply the legal ethics rules of the state in which the attorney is located to all electronic representations. However, the dormant commerce clause prohibits a state from regulating activity that does not occur or have a significant effect in its physical boundaries. It is not clear that the state in which the lawyer is located has a significant enough interest, under a dormant commerce clause analysis, to prohibit, or even regulate, this type of representation in most situations. Often, the effect of an electronic representation will be born wholly in the other state where the client is located, and this state’s ethical regime would be ignored under the likely interpretation of Model Rule 8.5(b)(2). Therefore, jurisdictions should either eliminate the language from the rule that results in the application of the ethics regime of the attorney’s home jurisdiction in all situations or define key terms in the rule to focus the analysis on the location of the client affected and the jurisdiction where the legal advice provided is acted upon. Either option will allow for the application of the ethics rules of the jurisdiction where the client is physically located when the most significant effect from the representation is felt in the client’s home jurisdiction. Because this state has a much more significant interest in protecting the resident client from potentially damaging legal representations, this jurisdiction more properly should determine the manner in which attorneys can represent its residents and whether any constraints should be placed on electronic representations

Os pactos atributivos de jurisdição nos contratos electrónicos de consumo

Choice of court agreements in consumer e-contracts. The international dimension of electronic commerce and the multi-jurisdictional nature of the Internet place difficult questions concerning the determination of the competent national court. The EU Regulation 44/2001 provides several rules concerning jurisdiction on civil and commercial matters. Concerning contracts, it is based upon the principle of freedom of contract. However, in order to protect the weakest party some exceptions to that principle are provided, namely in what concerns consumer protection. In fact, in the silence of the parties the competent court may be the court of the domicile of the consumer (and at the same time the applicable law will be the one of his habitual residence according to the Rome Convention). This solution is derogation to the general rule of forum defensoris and to the special rule concerning contractual liability. It is justified for reasons of consumer protection, but it seems that the Regulation allows parties to agree the competence of a third court. However, this derogation to the derogation may be, it is argued, not possible in Portuguese Law, having in consideration the Standard Terms Act. Finally, the principles of jurisdiction are also considered in what concerns arbitrage agreements.1. A dimensão internacional do comércio electrónico, a natureza «multi-jurisdicional» da internet e o Regulamento 44/2001. 2. O princípio da autonomia e a liberdade de celebração de pactos de jurisdição. 3. O princípio da protecção da parte mais fraca nos contratos de consumo e a regra do foro do domicílio do consumidor. 4. A possível coincidência entre o foro competente e a lei aplicável no quadro da Convenção de Roma. 5. Derrogação à regra geral do forum defensoris e à regra especial em matéria de responsabilidade contratual. 6. As dificuldades de distinção entre compra e venda e prestação de serviços no comércio electrónico directo. 7. Os limites à liberdade contratual na celebração de pactos atributivos de jurisdição e suas excepções. 8. O afastamento de uma interpretação puramente literal do Regulamento para salvaguardar a razoabilidade do legislador comunitário. 9. O problema da validade dos pactos de jurisdição incluídos em contratos de adesão. 10. Os princípios da jurisdição nas cláusulas de recurso à arbitragem