Understanding the Functions of Jurisdictional Law

Important Concept ◽

Definition Of

This chapter takes us into the domain of legal theory and legal philosophy as it places the questions of Internet jurisdiction in a broader theoretical, and indeed philosophical, context. Indeed, it goes as far as to (1) present a definition of what is law, (2) discuss what are the law’s tools, and (3) to describe the roles of law. In addition, it provides distinctions important for how we understand the role of jurisdictional rules both in private international law and in public international law as traditionally defined. Furthermore, it adds law reform tools by introducing and discussing the concept of ‘market sovereignty’ based on ‘market destroying measures’––an important concept for solving the Internet jurisdiction puzzle.

The Role of Geo-location Technologies

10.1093/oso/9780198795674.003.0011 ◽

2017 ◽

Author(s):

Dan Jerker B. Svantesson

Keyword(s):

International Law ◽

Law Reform ◽

Current Effect ◽

The Road ◽

On The Road

This chapter explores the role geo-location technologies may play on the road towards achieving jurisdictional interoperability. The relevant technologies involved are introduced briefly, their accuracy examined, and an overview is provided of their use, including the increasingly common use of so-called geo-blocking. Attention is then given to perceived and real concerns stemming from the use of geo-location technologies and how these technologies impact international law, territoriality, and sovereignty, as well as to the role these technologies may play in law reform. The point is made that the current ‘effect-focused’ rules in both private international law and public international law (as those disciplines are traditionally defined), are likely to continue to work as an incentive for the use of geo-location technologies.

Introduction

10.1093/oso/9780198795674.003.0001 ◽

2017 ◽

Author(s):

Dan Jerker B. Svantesson

Keyword(s):

International Law ◽

Law Reform ◽

The Internet ◽

Reform Initiatives ◽

The Public ◽

Cross Border ◽

The Law

This chapter introduces the topic of the book with particular focus on displaying its diversity. It brings attention to the challenges we face, especially due to our current territoriality-focused paradigm. It hints at the tools—the law reform initiatives—needed to solve the Internet jurisdiction puzzle. Finally, this chapter outlines and discusses a set of fundamental assumptions that have impacted how the author views this area of law. Based on those fundamental assumptions, it is argued that the Internet serves humanity best where it caters for cross-border interaction governed by law: law with an appropriate reach determined not merely by national territoriality but also by broader international interests that transcend the public/private international law divide.

Extraterritoriality in Private International Law

Actual Problems of Russian Law ◽

10.17803/1994-1471.2021.126.5.183-194 ◽

2021 ◽

Vol 16 (5) ◽

pp. 183-194

Author(s):

L. V. Terenteva

Keyword(s):

Law Enforcement ◽

International Law ◽

Private Law ◽

Public And Private ◽

Cross Border ◽

Foreign State ◽

Extraterritorial Jurisdiction ◽

Definition Of

The paper questions the extraterritorial nature of foreign private law applied by the national law enforcement body in the regulation of cross-border private law relations. In view of the use of common terms “exterritorial” and “extraterritorial” in the framework of international public and private law regulation, it seems necessary to study the extraterritorial effect of foreign private law provisions through the prism of the substantive characteristics of extraterritoriality, formulated in the context of public international law. To this end, the author refers to the definition of extraterritorial jurisdiction as an international legal category and raises the question of how appropriate it is to admit, within the framework of a single definition, “extraterritorial” both the presence and absence of the manifestation of the sovereign will of the state on the territory of which any of the types of jurisdiction of a foreign state is exercised. Taking into account that the manifestation of the extraterritorial jurisdiction of one state in relation to another is realized in the absence of the latter’s sanction for its implementation, the author debates the admissibility of designation as extraterritorial foreign private law, the admissibility and limits of application of which are sanctioned by the national state.

In the Name of the International: The Supreme Court of Canada and the Internationalist Transformation of Canadian Private International Law

Canadian Yearbook of international Law/Annuaire canadien de droit international ◽

10.1017/s0069005800007566 ◽

2002 ◽

Vol 39 ◽

pp. 117-209 ◽

Cited By ~ 4

Author(s):

Robert Wai

Keyword(s):

Supreme Court ◽

International Law ◽

Law Reform ◽

Supreme Court Of Canada ◽

International Treaties ◽

Customary International Law ◽

Liberal Internationalism ◽

The Supreme Court

SummaryThis article discusses four judgments of the Supreme Court of Canada that transformed private international law in Canada and represent a striking episode in the internationalization of law — a form of judicial activism in the name of the international. It is argued that these cases evidence a mode of internationalization by internationalist policy consciousness that is distinct from, although often complementary to, internationalization via the mechanism of international treaties or changes in customary international law. The key features of this approach suggest some resemblances to the vision found in the traditions of liberal internationalism, Canadian internationalism, and public international law. The article cautions against several general dangers in the use of this approach in law reform and adjudication and uses two specific doctrinal issues in private international law to demonstrate what a richer policy discourse concerning internationalism would be.

The same as it never was? Uncertainty and the changing contours of international law

Review of International Studies ◽

10.1017/s0260210511000386 ◽

2011 ◽

Vol 37 (5) ◽

pp. 2163-2182 ◽

Cited By ~ 3

Author(s):

OLIVER KESSLER

Keyword(s):

Cold War ◽

International Law ◽

Dispute Settlement ◽

Attribution Of Responsibility ◽

World Polity ◽

The World ◽

Definition Of ◽

The Cold War

AbstractInternational law has changed significantly since the end of the Cold War. As long as the international was thought to be populated by sovereign states predominantly, international law was conceived of as a means for peaceful dispute settlement. That is: the reference to state sovereignty not only divided public from private international law, but structured most of public international law itself; from the very definition of and associated rights and duties to the attribution of responsibility. With the emergence of the post-national constellation, a reduction of law to questions of states' practices is increasingly problematic. At the same time, the post-national constellation denotes more than just a structural shift in the world polity. It challenges established dogmas rooted in an individualistic philosophy of science and thereby calls for a different understanding of how the world is (made) known. What uncertainty has to offer is the provision of a different vocabulary detached from the state through which we can reconsider some changes in international law.

Rules of jurisdiction in the new Hungarian private international law

Hungarian Journal of Legal Studies ◽

10.1556/2052.2021.00285 ◽

2021 ◽

Author(s):

Katalin Gombos

Keyword(s):

International Law ◽

The Novel ◽

International Distribution ◽

Basic Purpose ◽

Definition Of ◽

The Relationship

AbstractOn 1 January 2018, a new act entered into force in Hungary. This act is the new code of private international law in Hungary. The basic purpose of this article is to present the jurisdictional rules of the new law. In the description I discuss how the new act differs from the rules of the old code. In addition, I focus on international and European trends in private international law. I also examine the extent to which the new Hungarian code complies with these trends, as well as discussing the peculiarities of the Hungarian regulation. The new Code uses the concept of jurisdiction as a rule for the ‘international distribution’ of cases and in the sense of public international law. Therefore, I also address in this article the definition of jurisdiction and other conceptual issues, the doctrines of immunity and the description of the jurisdictional system of the Code. I present the relationship between international, European and Hungarian rules which are relevant in private international law. In addition, I provide an overview of the novel system of jurisdictional rules in the Code.

“Head in the Clouds”: The Clash between Territorial Sovereignty, Jurisdiction, and the Territorial Detachment of the Internet

Internet Jurisdiction Law and Practice ◽

10.1093/oso/9780198806929.003.0002 ◽

2021 ◽

pp. 4-32

Author(s):

Julia Hörnle

Keyword(s):

Criminal Justice ◽

International Law ◽

Criminal Justice System ◽

The Internet ◽

The Us ◽

Extraterritorial Jurisdiction ◽

Global Law ◽

Theoretical Foundations

Chapter 2 lays the theoretical foundations for the book and conceptualizes the notion of jurisdiction in different contexts, framing jurisdiction in relation to territoriality, sovereignty, and state authority. It clearly explains the different legal meanings of the term “jurisdiction” and how the term is used in law, political theory, and international relations. The chapter examines jurisdiction in four different areas of law: (1) public international law, (2) private international law, (3) the criminal justice system, and (4) regulatory jurisdiction. Furthermore, the chapter explains globalization as a background to the Jurisdictional Challenge and the challenge to state-made law. It summarizes the discussion on global law as a reaction to the Jurisdictional Challenge. Finally, the chapter juxtaposes sovereignty and territoriality and concludes with a discussion of extraterritorial jurisdiction and recent jurisprudence, particularly in the US.

Personal Jurisdiction Based on the Location of a Server: Chinese Territorialism in the Internet Era?

10.31235/osf.io/emhkn ◽

2021 ◽

Author(s):

Jie Huang

Keyword(s):

International Law ◽

Legal Theory ◽

Geographic Location ◽

Third Party ◽

The Internet ◽

The Us ◽

Intellectual Property Infringement ◽

Personal Jurisdiction ◽

Jurisdiction Rule

Whether a court can exercise personal jurisdiction based on the location of a server in internet tort cases is a controversial issue. Its significance comes from the paradox that the internet is de-localized because it is ubiquitous, but servers are indispensable to the internet and every server has a geographic location. Since 2001, Chinese law has allowed courts to exercise personal jurisdiction solely based on the location of a server or other computing equipment in intellectual property infringement cases. Recently, it has extended this jurisdiction rule to all internet torts. This paper asks whether the location of a server should be considered as the place where the tort occurs and whether this territorial-based jurisdiction rule can suffice its public-law legislative goal. It may enrich current research about technology-mediated legal challenges to private international law in two aspects. Firstly, it conducts a broad international survey by looking into laws in China, the US, Australia and the EU. It also analyzes where the tort occurs when servers are owned by an infringer, a third party or an infringee in domain name registration, service outsourcing, platform, cloud computing, commercial spams, etc. It concludes that in legal theory, the location of the server is not the place where an internet tort occurs. Secondly, by analyzing China’s experience, it argues that, in the internet era, states have to look for private-international-law tools to advance their public policy claims. However, the practice shows that the territorial-based jurisdiction rule is limited in fulfilling its pubic-law legislative goal.