PIL and Internet – connecting factors for online acivity? Tereza Kyselovská.

PIL and Internet – connecting factors for

online acivity?

Tereza Kyselovská

PIL and internet• Jurisdiction• Territoriality• Sovereignty

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Territoriality• Territoriality in public international law• Primary source of regulatory authority for states• State has jurisdiction to act within its territoty• Effects doctrine• The division of international regulatory authority is organized by reference

to territorial criteria

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Territoriality• Sometimes – „reasonableness“ -> too much flexibility to courts?

– The link of the activity to the territory of the regulating state, e.g. The extent to which the activity takes place within the territory, or has substantial, direct and forseeable effect upon or in the territory

– Huber, Story

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Territoriality• Territoriality in private international law• Its influence is still pervasive• Extreme example – U.S. – presence of the defendant within the territory is

sufficient to constitute jurisdiction, regardless of the tenuousness or transitory character of the link between the defendant and the territory (at the time of commencement of proceedings) -> absolute sovereignty?– Ujustified exercise of jurisdiction– Forum non conveniens

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Territoriality• Huber, Story, Savigny• Territorial sovereignty in international law• Effectiveness of laws within the territory of a state but not beyond• Comity• Vested rights

• Minimum contacts test

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Territoriality and globalisation• Decline of the state?• Reassert the territoriality?

• Globalization will not undermine territoriality in either public and private international law, but will increase blur between them

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PIL in cyberspace• Symeon C. Symeonides. Codification and Flexibility in Private International

Law

• „… codes are not monsters… and even they are, they can be trained.“

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PIL in cyberspace• Legal certainty and predictability• X• Flexibility, equity

• Aristotle

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The sliding scale of flexibility1. Traditional fixed state-selecting rules

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2. Rules with alternative connecting factors

3. Rules with escape clauses 4.

Rules with soft connecting factors

5. Ad hoc approaches

1. Traditional fixed state-selecting rules • Lex loci contractus, lex loci delicti• No court discretion

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2. Rules with alternative connecting factors• E.g. For formal validity – lex loci contractus or lex causae, lex domicilii

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Rules with flexible connecting factors• Close connection, closest connection• More individualized approach• Used as:

– Main connecting factor– Default rule– Gap-filler

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3. Rules with escape clauses

• Traditionally – ordre public• Art. 4/3 Rome I, Art. 4/3 Rome II• „clear from all circumstances fo the case“, „manifestly more connected to

the case“• Disadvantages

– Only in exceptional cases– Again based on territoriality – escape clauses should cure the rule‘s

deficienecies, not to reproduce them

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4. Rules with soft connecting factors • More flexible, less territorial focus, oriented at principles• „law that has most significant connection to the parties and the dispute“• „the law of the state whose contacts with the parties and the disputes and

whose policies on the disputed issues make application of the state‘s law the most appropriate for those issues“

• § 10 ZMPS – rozumné a spravedlivé uspořádání právního vztahu

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5. Ad hoc approaches – Court discretion, ad hoc, a posteriori law applicable

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5. Ad hoc approaches • U.S. – Restatement (Second) – „the goal of the choice of law process is to

identify the state that has the most significant relationship“– the needs of the interstate and international systems – the relevant policies of the forum – the relevant policies of other interested states and the relative interests of

those states in the determination of the particular issue – the protection of justified expectations – the basic policies underlying the particular field of law– certainty, predictability and uniformity of result – ease in the determination and application of the law to be applied

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5. Ad hoc approaches – U.S.• Jurisdiction – due process test

1. Minimum contacts with the forum2. Fair play and substantial justice

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5. Ad hoc approaches – U.S.• Minimum contacts

– Cunduction of business– Torts – effects doctrine = knowingly, expressly, legal consequences– Jurisdiction – Grosker peer to peer filesharing case – Kalifornie, copyright

– Grosker/KaZaa – sídlo v Autrálii, seated in Vanuatu

– Zippo scale

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Connecting factors - jurisdiction• 1. Uninteresting and uncontorversial jurisdictional grounds

– Lex domicilii, lex patriae

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Connecting factors - jurisdiction• 2. Uninteresting and contorversial jurisdictional grounds

– Presence of the defendant within the forum

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Connecting factors - jurisdiction• 3. submission

– After the dispute arises– Before the dispute arises

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Connecting factors - jurisdiction• 4. lex loci contractus• 5. the applicable law being the law of the forum• 6. contract breached within the forum• 7. location of the object of litigation• 8. the place of the wrongful act• 9. lex loci server• 10. forum non conveniens

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Summary• Modern codifications of PIL – more flexible• EU – evolution - new rules, direction of activities…• U.S. – revolution – from extreme rigidity (Restatement First) to extreme

flexibility (Restatement Second), ad hoc approaches

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Geoidentification - Svantesson• “We know you are in Brno (CR). This website is only intended for the

people of Norway.”• Shift from the world's first and only ‘borderless’ communication medium

to something that much more resembles our physical world divided by borders of different kinds -> losing one of the greatest benefits of the Internet

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Carving up the internet - Schultz• Vertical and horizontal fragmentation

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TED • http://www.ted.com/talks/rebecca_mackinnon_let_s_take_back_the_inte

rnet.html• http://www.youtube.com/watch?v=zS4deaFRBKI

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Thank you for your attention

PROJECT „THEORY – SKILL – EXPERIENCE“reg. No. CZ.1.07/2.2.00/15.0198, Operational Program Education for Competitiveness