Conventional Jurisdictional Rules and Internet Disputes22 Mar 2016 2121 Views
Recent decades have witnessed a fast expansion, integration and sprint development of the global cyberspace. Internet has not been introduced and used for leisure and entertainment purposes only, but rather it has become a global market place
where businesses are conducted, both B2B and B2C. Thus, as long as ‘contacts and contracts’ are increasing, so do ‘cross-border disputes and conflicts’ . However, how to deal with such disputes remains a hot topic for discussion.
The common discussion points relate to application of conventional jurisdictional rules to internet disputes; whether or not ‘law can keep pace’ with the rapid development of the Internet; whether conventional jurisdictional rules based on geographical borders and geographic territories, be applied to borderless, global Internet, the global space it has on its own created, the so-called cyberspace.
When considering the matter, I tend to agree with Julie Hern on her statement that ‘…the application of conventional jurisdictional rules to Internet disputes is enormously complex, unpredictable and uncertain’ .
Where does the complexity lie?
Although Brussels I Regulation does provide guiding principles as to the assumption of jurisdiction, challenges arise during interpretation. For example, under article 5 (1) (a) of the Regulation a court might assume jurisdiction if the place of obligation performance was in its forum, 5 (1) (b) further clarifies for both delivery of goods and services, ‘the place in a Member State where, under the contract, the goods (services) were delivered or should have been delivered’ . Now, when applying these to e-commerce, it is at times difficult to identify the exact place of the obligation performance. According to Hornle, who brings a very realistic example of the case where company provider of software for sale, the recipient, ISP and server hosting the software downloading are all located in four different locales; In this case, there are ‘four arguable possibilities for the place of performance of the contract: a. the location of the server which hosts the material being downloaded; b. the provider’s domicile; c. the location of the recipient’s ISP; d. the location of the recipient’s desktop computer.’ Internet presents a wide range of technological sophistications and companies are utilizing very sophisticated, dispersed and diverse business operational models which cross borders and, hence, which might pose a challenge as to the definition of the place of delivery. Engel brings up the point regarding IP addresses and imposition by the nation states on ISPs ‘to program their routers so as to make…each computer to have an unequivocal address’ . This is in order to ‘technically renationalize the Internet’ . And here, once again, when talking about IP addresses, the use of proxy servers to disguise one’s traces comes in mind and its impact on tracking the chain of the e-transaction. Another question that comes to mind is what if there are multiple locations of delivery. Interpretation of the article was exemplified in Drack GbmbH v. Lexx International Vertiebs GmbH where the court ruled that ‘the point of closest linking factor will, as a general rule, be at the place of the principal delivery, which must be determined on the basis of economic criteria’ . Another challenge outlined by Wang, and in my opinion, a very important one when talking about application of conventional jurisdictional rules, lies in the definition of delivery of goods and services, which might complicate the matter, a distinction between ‘physical goods and digitized goods, physical services and digitized services’, ‘physical performance and digitized performance’ . Clear definitions and applicable articles must be drafted in my opinion, to avoid lengthy search of the connecting factors.
Further, when considering Article 2 of the Brussels I, defining a domicile in contracts conducted over the internet might be a difficult task, as well as establishment of main place of administration as per Article 60(1) of a company since companies operating in the cyberspace might be equally present in various countries .
Another complexity which might lead to uncertainty and difficulty is the, let me call it a ‘burden of proof’, which with the technological complexities and advancement became a very difficult procedure as well as at times difficult to perform. And here, I refer to collecting evidence and in case of online dealing this entails gathering server logs, communication threads, printouts from various sources, other technical information hosted in various places etc. And, most of the times this is not an easy task to perform. To a certain extent a case exemplifying the point is Al-Amoudi v Brisard where it had to be shown that the material had been accessed and downloaded within UK.
In my opinion application of conventional jurisdictional rules based on geographical factor is problematic and creates challenges and uncertainties; Why? Because these were not developed for the cyberspace. I believe that a new move needs to be undertaken in the direction of establishing new tests for jurisdiction and a consistent method of resolving conflict of laws in disputes arising in the electronic realm. As Engel outlined in his article, resistance to governance related to the internet echoed in the 1990s slogan ‘Keep your laws off our Net!’ , is present and poses a challenge for several reasons, however, the necessity for introducing a particular form of governance is inevitable and is highly needed, and in my opinion, for two main reasons: one being that commercial transactions are becoming more and more sophisticated and spread around the globe, and the criminal element in these transactions is on its rise. And as these transactions and technology associated are becoming more sophisticated and technical, so should governing laws (become very specific and definitive).
 Julia Hörnle, ‘The Jurisdictional Challenge of the Internet’ in Lilian Edwards and Charlotte Waelde (eds),Law and the Internet (3rd edn, Hart Publishing 2009), 121
 Christoph Engel, ‘The Role of Law in the Governance of the Internet’ (2006) 20(1/2) IRLCT 201, 205
 Ibid (1) 121
 Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of foreign judgments in civil and commercial matters  OJ L012/6.01 0001-0023 <http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2001:012:0001:0023:EN:PDF> accessed 7 February 2013
 Ibid (4)
 Ibid (1) 126
 Christoph Engel, ‘The Role of Law in the Governance of the Internet’ (2006) 20(1/2) IRLCT 201
 Ibid 208
 Color Brack GmbH v. Lexx International Vetriebs GmbH (Case C-386/05),  I.L. Pr. 35
 Faye Fangfei Wang, ‘Obstacles and Solutions to Internet Jurisdiction. A Comparative Analysis of the EU and US Laws’ (2008) 3(4) JICLT 233
 Ibid 236
 Ibid (10)
 Al-Amoudi v Brisard  EWHC 1062 (QB)
 Ibid (7) 201